Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action, 52791-52886 [2012-16757]

Download as PDF Vol. 77 Thursday, No. 169 August 30, 2012 Part II Department of the Treasury Office of the Comptroller of the Currency 12 CFR Parts 3, 5, 6, et al. Federal Reserve System 12 CFR Parts 208, 217, and 225 Federal Deposit Insurance Corporation mstockstill on DSK4VPTVN1PROD with PROPOSALS2 12 CFR Parts 324, 325, and 362 Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action; Proposed Rule VerDate Mar<15>2010 22:41 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\30AUP2.SGM 30AUP2 52792 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Parts 3, 5, 6, 165, and 167 [Docket ID OCC–2012–0008] RIN 1557–AD46 FEDERAL RESERVE SYSTEM 12 CFR Parts 208, 217, and 225 Regulations H, Q, and Y [Docket No. R–1442] RIN 7100–AD87 FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Parts 324, 325, and 362 RIN 3064–AD95 Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action Office of the Comptroller of the Currency, Treasury; the Board of Governors of the Federal Reserve System; and the Federal Deposit Insurance Corporation. ACTION: Joint notice of proposed rulemaking. AGENCIES: The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) are seeking comment on three Notices of Proposed Rulemaking (NPR) that would revise and replace the agencies’ current capital rules. In this NPR, the agencies are proposing to revise their risk-based and leverage capital requirements consistent with agreements reached by the Basel Committee on Banking Supervision (BCBS) in ‘‘Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems’’ (Basel III). The proposed revisions would include implementation of a new common equity tier 1 minimum capital requirement, a higher minimum tier 1 capital requirement, and, for banking organizations subject to the advanced approaches capital rules, a supplementary leverage ratio that incorporates a broader set of exposures in the denominator measure. Additionally, consistent with Basel III, the agencies are proposing to apply limits on a banking organization’s mstockstill on DSK4VPTVN1PROD with PROPOSALS2 SUMMARY: VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 capital distributions and certain discretionary bonus payments if the banking organization does not hold a specified amount of common equity tier 1 capital in addition to the amount necessary to meet its minimum riskbased capital requirements. This NPR also would establish more conservative standards for including an instrument in regulatory capital. As discussed in the proposal, the revisions set forth in this NPR are consistent with section 171 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), which requires the agencies to establish minimum risk-based and leverage capital requirements. In connection with the proposed changes to the agencies’ capital rules in this NPR, the agencies are also seeking comment on the two related NPRs published elsewhere in today’s Federal Register. The two related NPRs are discussed further in the SUPPLEMENTARY INFORMATION. DATES: Comments must be submitted on or before October 22, 2012. ADDRESSES: Comments should be directed to: OCC: Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments by the Federal eRulemaking Portal or email, if possible. Please use the title ‘‘Regulatory Capital Rules: Regulatory Capital, Implementation of Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition Provisions, and Prompt Corrective Action’’ to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods: Federal eRulemaking Portal— ‘‘regulations.gov’’: Go to http:// www.regulations.gov. Click ‘‘Advanced Search’’. Select ‘‘Document Type’’ of ‘‘Proposed Rule’’, and in ‘‘By Keyword or ID’’ box, enter Docket ID ‘‘OCC– 2012–0008,’’ and click ‘‘Search’’. If proposed rules for more than one agency are listed, in the ‘‘Agency’’ column, locate the notice of proposed rulemaking for the OCC. Comments can be filtered by agency using the filtering tools on the left side of the screen. In the ‘‘Actions’’ column, click on ‘‘Submit a Comment’’ or ‘‘Open Docket Folder’’ to submit or view public comments and to view supporting and related materials for this rulemaking action. • Click on the ‘‘Help’’ tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting or viewing public comments, viewing other supporting and related materials, PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 and viewing the docket after the close of the comment period. • Email: regs.comments@occ.treas.gov. • Mail: Office of the Comptroller of the Currency, 250 E Street SW., Mail Stop 2–3, Washington, DC 20219. • Fax: (202) 874–5274. • Hand Delivery/Courier: 250 E Street SW., Mail Stop 2–3, Washington, DC 20219. Instructions: You must include ‘‘OCC’’ as the agency name and ‘‘Docket ID OCC–2012–0008’’ in your comment. In general, the OCC will enter all comments received into the docket and publish them on Regulations.gov without change, including any business or personal information that you provide such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not enclose any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this notice by any of the following methods: • Viewing Comments Electronically: Go to http://www.regulations.gov. Click ‘‘Advanced Search’’. Select ‘‘Document Type’’ of ‘‘Public Submission’’ and in ‘‘By Keyword or ID’’ box enter Docket ID ‘‘OCC–2012–0008,’’ and click ‘‘Search.’’ If comments from more than one agency are listed, the ‘‘Agency’’ column will indicate which comments were received by the OCC. Comments can be filtered by Agency using the filtering tools on the left side of the screen. • Viewing Comments Personally: You may personally inspect and photocopy comments at the OCC, 250 E Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 874–4700. Upon arrival, visitors will be required to present valid government-issued photo identification and to submit to security screening in order to inspect and photocopy comments. • Docket: You may also view or request available background documents and project summaries using the methods described previously. Board: When submitting comments, please consider submitting your comments by email or fax because paper mail in the Washington, DC, area and at the Board may be subject to delay. You may submit comments, identified by Docket No. R–1430; RIN No. 7100– AD87, by any of the following methods: E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules • Agency Web Site: http:// www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/ generalinfo/foia/ProposedRegs.cfm. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: regs.comments@ federalreserve.gov. Include docket number in the subject line of the message. • Fax: (202) 452–3819 or (202) 452– 3102. • Mail: Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551. All public comments are available from the Board’s Web site at http:// www.federalreserve.gov/generalinfo/ foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room MP–500 of the Board’s Martin Building (20th and C Street NW., Washington, DC 20551) between 9 a.m. and 5 p.m. on weekdays. FDIC: You may submit comments by any of the following methods: • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Agency Web site: http:// www.FDIC.gov/regulations/laws/ federal/propose.html. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. • Hand Delivered/Courier: The guard station at the rear of the 550 17th Street building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m. • Email: comments@FDIC.gov. • Instructions: Comments submitted must include ‘‘FDIC’’ and ‘‘RIN 3064– AD95.’’ Comments received will be posted without change to http:// www.FDIC.gov/regulations/laws/ federal/propose.html, including any personal information provided. FOR FURTHER INFORMATION CONTACT: OCC: Margot Schwadron, Senior Risk Expert, (202) 874–6022; David Elkes, Risk Expert, (202) 874–3846; Mark Ginsberg, Risk Expert, (202) 927–4580; or Ron Shimabukuro, Senior Counsel, Patrick Tierney, Counsel, or Carl Kaminski, Senior Attorney, Legislative and Regulatory Activities Division, (202) 874–5090, Office of the VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Comptroller of the Currency, 250 E Street SW., Washington, DC 20219. Board: Anna Lee Hewko, Assistant Director, (202) 530–6260, Thomas Boemio, Manager, (202) 452–2982, Constance M. Horsley, Manager, (202) 452–5239, or Juan C. Climent, Senior Supervisory Financial Analyst, (202) 872–7526, Capital and Regulatory Policy, Division of Banking Supervision and Regulation; or Benjamin McDonough, Senior Counsel, (202) 452– 2036, April C. Snyder, Senior Counsel, (202) 452–3099, or Christine Graham, Senior Attorney, (202) 452–3005, Legal Division, Board of Governors of the Federal Reserve System, 20th and C Streets NW., Washington, DC 20551. For the hearing impaired only, Telecommunication Device for the Deaf (TDD), (202) 263–4869. FDIC: Bobby R. Bean, Associate Director, bbean@fdic.gov; Ryan Billingsley, Senior Policy Analyst, rbillingsley@fdic.gov; Karl Reitz, Senior Policy Analyst, kreitz@fdic.gov, Division of Risk Management Supervision; David Riley, Senior Policy Analyst, dariley@fdic.gov, Division of Risk Management Supervision, Capital Markets Branch, (202) 898–6888; or Mark Handzlik, Counsel, mhandzlik@fdic.gov, Michael Phillips, Counsel, mphillips@fdic.gov, Greg Feder, Counsel, gfeder@fdic.gov, or Ryan Clougherty, Senior Attorney, rclougherty@fdic.gov; Supervision Branch, Legal Division, Federal Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 20429. SUPPLEMENTARY INFORMATION: In connection with the proposed changes to the agencies’ capital rules in this NPR, the agencies are also seeking comment on the two related NPRs published elsewhere in today’s Federal Register. In the notice titled ‘‘Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets; Market Discipline and Disclosure Requirements’’ (Standardized Approach NPR), the agencies are proposing to revise and harmonize their rules for calculating risk-weighted assets to enhance risk sensitivity and address weaknesses identified over recent years, including by incorporating aspects of the BCBS’s Basel II standardized framework in the ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework,’’ including subsequent amendments to that standard, and recent BCBS consultative papers. The Standardized Approach NPR also includes alternatives to credit ratings, consistent with section 939A of the Dodd-Frank Act. The revisions include PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 52793 methodologies for determining riskweighted assets for residential mortgages, securitization exposures, and counterparty credit risk. The Standardized Approach NPR also would introduce disclosure requirements that would apply to top-tier banking organizations domiciled in the United States with $50 billion or more in total assets, including disclosures related to regulatory capital instruments. The proposals in this NPR and the Standardized Approach NPR would apply to all banking organizations that are currently subject to minimum capital requirements (including national banks, state member banks, state nonmember banks, state and federal savings associations, and top-tier bank holding companies domiciled in the United States not subject to the Board’s Small Bank Holding Company Policy Statement (12 CFR part 225, appendix C)), as well as top-tier savings and loan holding companies domiciled in the United States (together, banking organizations). In the notice titled ‘‘Regulatory Capital Rules: Advanced Approaches Risk-Based Capital Rule; Market Risk Capital Rule,’’ (Advanced Approaches and Market Risk NPR) the agencies are proposing to revise the advanced approaches risk-based capital rules consistent with Basel III and other changes to the BCBS’s capital standards. The agencies also propose to revise the advanced approaches risk-based capital rules to be consistent with section 939A and section 171 of the Dodd-Frank Act. Additionally, in the Advanced Approaches and Market Risk NPR, the OCC and FDIC are proposing that the market risk capital rules be applicable to federal and state savings associations and the Board is proposing that the advanced approaches and market risk capital rules apply to top-tier savings and loan holding companies domiciled in the United States, in each case, if stated thresholds for trading activity are met. As described in this NPR, the agencies also propose to codify their regulatory capital rules, which currently reside in various appendixes to their respective regulations. The proposals are published in three separate NPRs to reflect the distinct objectives of each proposal, to allow interested parties to better understand the various aspects of the overall capital framework, including which aspects of the rules would apply to which banking organizations, and to help interested parties better focus their comments on areas of particular interest. E:\FR\FM\30AUP2.SGM 30AUP2 52794 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Table of Contents 1 I. Introduction A. Overview of the Proposed Changes to the Agencies’ Current Capital Framework. A summary of the proposed changes to the agencies’ current capital framework through three concurrent notices of proposed rulemaking, including comparison of key provisions of the proposals to the agencies’ general risk-based and leverage capital rules. B. Background. A brief review of the evolution of the agencies’ capital rules and the Basel capital framework, including an overview of the rationale for certain revisions in the Basel capital framework. II. Minimum Capital Requirements, Regulatory Capital Buffer, and Requirements for Overall Capital Adequacy A. Minimum Capital Requirements and Regulatory Capital Buffer. A short description of the minimum capital ratios and their incorporation in the agencies’ Prompt Corrective Action (PCA) framework; introduction of a regulatory capital buffer. B. Leverage Ratio 1. Minimum Tier 1 Leverage Ratio. A description of the minimum tier 1 leverage ratio, including the calculation of the numerator and the denominator. 2. Supplementary Leverage Ratio for Advanced Approaches Banking Organizations.* A description of the new supplementary leverage ratio for advanced approaches banking organizations, including the calculation of the total leverage exposure. C. Capital Conservation Buffer. A description of the capital conservation buffer, which is designed to limit capital distributions and certain discretionary bonus payments if a banking organization does not hold a certain amount of common equity tier 1 capital in additional to the minimum risk-based capital ratios. D. Countercyclical Capital Buffer.* A description of the countercyclical buffer applicable to advanced approaches banking organizations, which would serve as an extension of the capital conservation buffer. E. Prompt Corrective Action Requirements. A description of the proposed revisions to the agencies’ prompt corrective action requirements, including incorporation of a common equity tier 1 capital ratio, an updated definition of tangible common equity, and, for advanced approaches banking organizations only, a supplementary leverage ratio. F. Supervisory Assessment of Overall Capital Adequacy. A brief overview of the capital adequacy requirements and supervisory assessment of a banking organization’s capital adequacy. G. Tangible Capital Requirement for Federal Savings Associations. A discussion of a statutory capital 1 Sections marked with an asterisk generally would not apply to less-complex banking organizations. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 requirement unique to federal savings associations. III. Definition of Capital A. Capital Components and Eligibility Criteria for Regulatory Capital Instruments 1. Common Equity Tier 1 Capital. A description of the common equity tier 1 capital elements and a description of the eligibility criteria for common equity tier 1 capital instruments. 2. Additional Tier 1 Capital. A description of the additional tier 1 capital elements and a description of the eligibility criteria for additional tier 1 capital instruments. 3. Tier 2 Capital. A description of the tier 2 capital elements and a description of the eligibility criteria for tier 2 capital instruments. 4. Capital Instruments of Mutual Banking Organizations. A discussion of potential issues related to capital instruments specific to mutual banking organizations. 5. Grandfathering of Certain Capital Instruments. A discussion of the recognition within regulatory capital of instruments specifically related to certain U.S. government programs. 6. Agency Approval of Capital Elements. A description of the approval process for new capital instruments. 7. Addressing the Point of Non-viability Requirements under Basel III.* A discussion of disclosure requirements for advanced approaches banking organizations for regulatory capital instruments addressing the point of nonviability requirements in Basel III. 8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries of a Banking Organization. A description of limits on the inclusion of minority interest in regulatory capital, including a discussion of Real Estate Investment Trust (REIT) preferred securities. B. Regulatory Adjustments and Deductions 1. Regulatory Deductions from Common Equity Tier 1 Capital. A discussion of the treatment of goodwill and certain other intangible assets and certain deferred tax assets. 2. Regulatory Adjustments to Common Equity Tier 1 Capital. A discussion of the adjustments to common equity tier 1 for certain cash flow hedges and changes in a banking organization’s own creditworthiness. 3. Regulatory Deductions Related to Investments in Capital Instruments. A discussion of the treatment for capital investments in other financial institutions. 4. Items subject to the 10 and 15 Percent Common Equity Tier 1 Capital Threshold Deductions. A discussion of the treatment of mortgage servicing assets, certain capital investments in other financial institutions and certain deferred tax assets. 5. Netting of Deferred Tax Liabilities against Deferred Tax Assets and Other Deductible Assets. A discussion of a banking organization’s option to net deferred tax liabilities against deferred tax assets if certain conditions are met under the proposal. PO 00000 Frm 00004 Fmt 4701 Sfmt 4702 6. Deduction from Tier 1 Capital of Investments in Hedge Funds and Private Equity Funds Pursuant to section 619 of the Dodd-Frank Act.* A description of the deduction from tier 1 capital for investments in hedge funds and private equity funds pursuant to section 619 of the Dodd-Frank Act. IV. Denominator Changes. A description of the changes to the calculation of riskweighted asset amounts related to the Basel III regulatory capital requirements. V. Transition Provisions A. Minimum Regulatory Capital Ratios. A description of the transition provisions for minimum regulatory capital ratios. B. Capital Conservation and Countercyclical Capital Buffer. A description of the transition provisions for the capital conservation buffer, and for advanced approaches banking organizations, the countercyclical capital buffer. C. Regulatory Capital Adjustments and Deductions. A description of the transition provisions for regulatory capital adjustments and deductions. D. Non-qualifying Capital Instruments. A description of the transition provisions for non-qualifying capital instruments. E. Leverage Ratio.* A description of the transition provisions for the new supplementary leverage ratio for advanced approaches banking organizations. VI. Additional OCC Technical Amendments. A description of additional technical and conforming amendments to the OCC’s current capital framework in 12 CFR part 3. VII. Abbreviations VIII. Regulatory Flexibility Act Analysis IX. Paperwork Reduction Act X. Plain Language XI. OCC Unfunded Mandates Reform Act of 1995 Determination Addendum 1: Summary of This NPR for Community Banking Organizations I. Introduction A. Overview of the Proposed Changes to the Agencies’ Current Capital Framework The Office of the Comptroller of the Currency (OCC), Board of Governors of the Federal Reserve System (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the agencies) are proposing comprehensive revisions to their regulatory capital framework through three concurrent notices of proposed rulemaking (NPR). These proposals would revise the agencies’ current general risk-based rules, advanced approaches risk-based capital rules (advanced approaches), and leverage capital rules (collectively, the current capital rules).2 The proposed 2 The agencies’ general risk-based capital rules are at 12 CFR part 3, appendix A, 12 CFR part 167 (OCC); 12 CFR parts 208 and 225, appendix A (Board); and 12 CFR part 325, appendix A, and 12 CFR part 390, subpart Z (FDIC). The agencies’ E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 revisions incorporate changes made by the Basel Committee on Banking Supervision (BCBS) to the Basel capital framework, including those in ‘‘Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems’’ (Basel III).3 The proposed revisions also would implement relevant provisions of the Dodd-Frank Act and restructure the agencies’ capital rules into a harmonized, codified regulatory capital framework.4 This notice (Basel III NPR) proposes the Basel III revisions to international capital standards related to minimum requirements, regulatory capital, and additional capital ‘‘buffers’’ to enhance the resiliency of banking organizations, particularly during periods of financial current leverage rules are at 12 CFR 3.6(b), 3.6(c), and 167.6 (OCC); 12 CFR part 208, appendix B, and 12 CFR part 225, appendix D (Board); and 12 CFR 325.3, and 390.467 (FDIC) (general risk-based capital rules). For banks and bank holding companies with significant trading activity, the general risk-based capital rules are supplemented by the agencies’ market risk rules, which appear at 12 CFR part 3, appendix B (OCC); 12 CFR part 208, appendix E, and 12 CFR part 225, appendix E (Board); and 12 CFR part 325, appendix C (FDIC) (market risk rules). The agencies’ advanced approaches rules are at 12 CFR part 3, appendix C, 12 CFR part 167, appendix C, (OCC); 12 CFR part 208, appendix F, and 12 CFR part 225, appendix G (Board); 12 CFR part 325, appendix D, and 12 CFR part 390, subpart Z, Appendix A (FDIC) (advanced approaches rules). The advanced approaches rules are generally mandatory for banking organizations and their subsidiaries that have $250 billion or more in total consolidated assets or that have consolidated total on-balance sheet foreign exposure at the most recent year-end equal to $10 billion or more. Other banking organizations may use the advanced approaches rules with the approval of their primary federal supervisor. See 12 CFR part 3, appendix C, section 1(b) (national banks); 12 CFR part 167, appendix C (federal savings associations); 12 CFR part 208, appendix F, section 1(b) (state member banks); 12 CFR part 225, appendix G, section 1(b) (bank holding companies); 12 CFR part 325, appendix D, section 1(b) (state nonmember banks); and 12 CFR part 390, subpart Z, appendix A, section 1(b) (state savings associations). The market risk capital rules apply to a banking organization if its total trading assets and liabilities is 10 percent or more of total assets or exceeds $1 billion. See 12 CFR part 3, appendix B, section 1(b) (national banks); 12 CFR parts 208 and 225, appendix E, section 1(b) (state member banks and bank holding companies, respectively); and 12 CFR part 325, appendix C, section 1(b) (state nonmember banks). 3 The BCBS is a committee of banking supervisory authorities, which was established by the central bank governors of the G–10 countries in 1975. It currently consists of senior representatives of bank supervisory authorities and central banks from Argentina, Australia, Belgium, Brazil, Canada, China, France, Germany, Hong Kong SAR, India, Indonesia, Italy, Japan, Korea, Luxembourg, Mexico, the Netherlands, Russia, Saudi Arabia, Singapore, South Africa, Sweden, Switzerland, Turkey, the United Kingdom, and the United States. Documents issued by the BCBS are available through the Bank for International Settlements Web site at http:// www.bis.org. 4 Public Law 111–203, 124 Stat. 1376, 1435–38 (2010) (Dodd-Frank Act). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 stress. It also proposes transition periods for many of the proposed requirements, consistent with Basel III and the Dodd-Frank Act. A second NPR (Standardized Approach NPR) would revise the methodologies for calculating risk-weighted assets in the general riskbased capital rules, incorporating aspects of the Basel II Standardized Approach and other changes.5 The Standardized Approach NPR also proposes alternative standards of creditworthiness (to credit ratings) consistent with section 939A of the Dodd-Frank Act.6 A third NPR (Advanced Approaches and Market Risk NPR) proposes changes to the advanced approaches rules to incorporate applicable provisions of Basel III and other agreements reached by the BCBS since 2009, proposes to apply the market risk capital rule (market risk rule) to savings associations and savings and loan holding companies and to apply the advanced approaches rule to savings and loan holding companies, and also removes references to credit ratings. Other than bank holding companies subject to the Board’s Small Bank Holding Company Policy Statement 7 (small bank holding companies), the proposals in the Basel III NPR and the Standardized Approach NPR would apply to all banking organizations currently subject to minimum capital requirements, including national banks, state member banks, state nonmember banks, state and federal savings associations, top-tier bank holding companies domiciled in the United States that are not small bank holding companies, as well as top-tier savings and loan holding companies domiciled in the United States (together, banking organizations).8 Certain aspects of these proposals would apply only to advanced approaches banking organizations or banking organizations with total consolidated assets of more 5 See BCBS, ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework,’’ (June 2006), available at http://www.bis.org/publ/bcbs128.htm (Basel II). 6 See section 939A of the Dodd-Frank Act (15 U.S.C. 78o–7 note). 7 12 CFR part 225, appendix C (Small Bank Holding Company Policy Statement). 8 Small bank holding companies would continue to be subject to the Small Bank Holding Company Policy Statement. Application of the proposals to all savings and loan holding companies (including small savings and loan holding companies) is consistent with the transfer of supervisory responsibilities to the Board and the requirements of section 171 of the Dodd-Frank Act. Section 171 of the Dodd-Frank Act by its terms does not apply to small bank holding companies, but there is no exemption from the requirements of section 171 for small savings and loan holding companies. See 12 U.S.C. 5371. PO 00000 Frm 00005 Fmt 4701 Sfmt 4702 52795 than $50 billion. Consistent with the Dodd-Frank Act, a bank holding company subsidiary of a foreign banking organization that is currently relying on the Board’s Supervision and Regulation Letter (SR) 01–1 would not be required to comply with the proposed capital requirements under any of these NPRs until July 21, 2015.9 In addition, the Board is proposing for all three NPRs to apply on a consolidated basis to top-tier savings and loan holding companies domiciled in the United States, subject to the applicable thresholds of the advanced approaches rules and the market risk rules. The agencies are publishing all the proposed changes to the agencies’ current capital rules at the same time in these three NPRs so that banking organizations can read the three NPRs together and assess the potential cumulative impact of the proposals on their operations and plan appropriately. The overall proposal is being divided into three separate NPRs to reflect the distinct objectives of each proposal and to allow interested parties to better understand the various aspects of the overall capital framework, including which aspects of the rules will apply to which banking organizations, and to help interested parties better focus their comments on areas of particular interest. The agencies believe that separating the proposals into three NPRs makes it easier for banking organizations of all sizes to more easily understand which proposed changes are related to the agencies’ objective to improve the quality and increase the quantity of capital (Basel III NPR) and which are related to the agencies’ objective to enhance the overall risksensitivity of the calculation of a banking organization’s total riskweighted assets (Standardized Approach NPR). The agencies believe that the proposals would result in capital requirements that better reflect banking organizations’ risk profiles and enhance their ability to continue functioning as financial intermediaries, including during periods of financial stress, thereby improving the overall resiliency of the banking system. The agencies have carefully considered the potential impact of the three NPRs on all banking organizations, including community banking organizations, and sought to minimize the potential burden of these changes where consistent with applicable law and the agencies’ goals of 9 See section 171(b)(4)(E) of the Dodd-Frank Act (12 U.S.C. 5371(b)(4)(E)); see also SR letter 01–1 (January 5, 2001), available at http://www.federal reserve.gov/boarddocs/srletters/2001/sr0101.htm. E:\FR\FM\30AUP2.SGM 30AUP2 52796 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules establishing a robust and comprehensive capital framework. In developing each of the three NPRs, wherever possible and appropriate, the agencies have tailored the proposed requirements to the size and complexity of a banking organization. The agencies believe that most banking organizations already hold sufficient capital to meet the proposed requirements, but recognize that the proposals entail significant changes with respect to certain aspects of the agencies’ capital requirements. The agencies are proposing transition arrangements or delayed effective dates for aspects of the revised capital requirements consistent with Basel III and the Dodd-Frank Act. The agencies anticipate that they separately would seek comment on regulatory reporting instructions to harmonize regulatory reports with these proposals in a subsequent Federal Register notice. Many of the proposed requirements in the three NPRs are not applicable to smaller, less complex banking organizations. To assist these banking organizations in rapidly identifying the elements of these proposals that would apply to them, this NPR and the Standardized Approach NPR provide, as addenda to the corresponding preambles, a summary of the various aspects of each NPR designed to clearly and succinctly describe the two NPRs as they would typically apply to smaller, less complex banking organizations.10 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Basel III NPR In 2010, the BCBS published Basel III, a comprehensive reform package that is designed to improve the quality and the quantity of regulatory capital and to build additional capacity into the banking system to absorb losses in times of future market and economic stress.11 This NPR proposes the majority of the revisions to international capital standards in Basel III, including a more restrictive definition of regulatory capital, higher minimum regulatory capital requirements, and a capital conservation and a countercyclical 10 The Standardized Approach NPR also contains a second addendum to the preamble, which contains the definitions proposed under the Basel III NPR. Many of the proposed definitions also are applicable to the Standardized Approach NPR, which is published elsewhere in today’s Federal Register. 11 BCBS published Basel III in December 2010 and revised it in June 2011. The text is available at http://www.bis.org/publ/bcbs189.htm. This NPR does not incorporate the Basel III reforms related to liquidity risk management, published in December 2010, ‘‘Basel III: International Framework for Liquidity Risk Measurement, Standards and Monitoring.’’ The agencies expect to propose rules to implement the Basel III liquidity provisions in a separate rulemaking. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 capital buffer, to enhance the ability of banking organizations to absorb losses and continue to operate as financial intermediaries during periods of economic stress.12 The proposal would place limits on banking organizations’ capital distributions and certain discretionary bonuses if they do not hold specified ‘‘buffers’’ of common equity tier 1 capital in excess of the new minimum capital requirements. This NPR also includes a leverage ratio contained in Basel III that incorporates certain off-balance sheet assets in the denominator (supplementary leverage ratio). The supplementary leverage ratio would apply only to banking organizations that use the advanced approaches rules (advanced approaches banking organizations). The current leverage ratio requirement (computed using the proposed new definition of capital) would continue to apply to all banking organizations, including advanced approaches banking organizations. In this NPR, the agencies also propose revisions to the agencies’ prompt corrective action (PCA) rules to incorporate the proposed revisions to the minimum regulatory capital ratios.13 Standardized Approach NPR The Standardized Approach NPR aims to enhance the risk-sensitivity of the agencies’ capital requirements by revising the calculation of risk-weighted assets. It would do this by incorporating aspects of the Basel II Standardized Approach, including aspects of the 2009 ‘‘Enhancements to the Basel II Framework’’ (2009 Enhancements), and other changes designed to improve the risk-sensitivity of the general risk-based capital requirements. The proposed changes are described in further detail in the preamble to the Standardized Approach NPR.14 As compared to the general risk-based capital rules, the Standardized Approach NPR includes a greater number of exposure categories for purposes of calculating total riskweighted assets, provides for greater recognition of financial collateral, and permits a wider range of eligible 12 Selected aspects of Basel III that would apply only to advanced approaches banking organizations are proposed in the Advanced Approaches and Market Risk NPR. 13 12 CFR part 6, 12 CFR 165 (OCC); 12 CFR part 208, subpart E (Board); 12 CFR part 325 and part 390, subpart Y (FDIC). 14 See BCBS, ‘‘Enhancements to the Basel II Framework’’ (July 2009), available at http:// www.bis.org/publ/bcbs157.htm (2009 Enhancements). See also BCBS, ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework,’’ (June 2006), available at http://www.bis.org/publ/bcbs128.htm (Basel II). PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 guarantors. In addition, to increase transparency in the derivatives market, the Standardized Approach NPR would provide a more favorable capital treatment for derivative and repo-style transactions cleared through central counterparties (as compared to the treatment for bilateral transactions) in order to create an incentive for banking organizations to enter into cleared transactions. Further, to promote transparency and market discipline, the Standardized Approach NPR proposes disclosure requirements that would apply to top-tier banking organizations domiciled in the United States with $50 billion or more in total assets that are not subject to disclosure requirements under the advanced approaches rule. In the Standardized Approach NPR, the agencies also propose to revise the calculation of risk-weighted assets for certain exposures, consistent with the requirements of section 939A of the Dodd-Frank Act by using standards of creditworthiness that are alternatives to credit ratings. These alternative standards would be used to assign risk weights to several categories of exposures, including sovereigns, public sector entities, depository institutions, and securitization exposures. These alternative standards and risk-based capital requirements have been designed to result in capital requirements that are consistent with safety and soundness, while also exhibiting risk sensitivity to the extent possible. Furthermore, these capital requirements are intended to be similar to those generated under the Basel capital framework. The Standardized Approach NPR would require banking organizations to implement the revisions contained in that NPR on January 1, 2015; however, the proposal would also allow banking organizations to early adopt the Standardized Approach revisions. Advanced Approaches and Market Risk NPR The proposals in the Advanced Approaches and Market Risk NPR would amend the advanced approaches rules and integrate the agencies’ revised market risk rules into the codified regulatory capital rules.15 The Advanced Approaches and Market Risk NPR would incorporate revisions to the Basel capital framework published by the BCBS in a series of documents between 2009 and 2011, including the 2009 Enhancements and Basel III. The proposals would also revise the 15 The agencies’ market risk rules are revised by a final rule published elsewhere today in the Federal Register. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules advanced approaches rules to achieve consistency with relevant provisions of the Dodd-Frank Act. Significant proposed revisions to the advanced approaches rules include the treatment of counterparty credit risk, the methodology for computing riskweighted assets for securitization exposures, and risk weights for exposures to central counterparties. For example, the Advanced Approaches and Market Risk NPR proposes capital requirements to account for credit valuation adjustments (CVA), wrongway risk, cleared derivative and repostyle transactions (similar to proposals in the Standardized Approach NPR) and default fund contributions to central counterparties. The Advanced Approaches and Market Risk NPR would also require banking organizations subject to the advanced approaches rules (advanced approaches banking organizations) to conduct more rigorous credit analysis of securitization exposures and implement certain disclosure requirements. The Advanced Approaches and Market Risk NPR additionally proposes to remove the ratings-based approach and the internal assessment approach from the current advanced approaches rules’ securitization hierarchy consistent with section 939A of the Dodd-Frank Act, and to include in the hierarchy the simplified supervisory formula approach (SSFA) as a methodology to calculate risk-weighted assets for securitization exposures. The SSFA methodology is also proposed in the Standardized Approach NPR and is included in the market risk rule. The agencies also are proposing to remove references to credit ratings from certain defined terms under the advanced approaches rules and replace them with alternative standards of creditworthiness. Banking organizations currently subject to the advanced approaches rule would continue to be subject to the advanced approaches rules. In addition, the Board proposes to apply the advanced approaches and market risk rules to savings and loan holding companies, and the OCC and FDIC propose to apply the market risk rules to federal and state savings associations that meet the scope of application of those rules, respectively. For advanced approaches banking organizations, the regulatory capital requirements proposed in this NPR and the Standardized Approach NPR would be ‘‘generally applicable’’ capital requirements for purposes of section 171 of the Dodd-Frank Act.16 Proposed Structure of the Agencies’ Regulatory Capital Framework and Key Provisions of the Three Proposals In connection with the changes proposed in the three NPRs, the 52797 agencies intend to codify their current regulatory capital requirements under applicable statutory authority. Under the revised structure, each agency’s capital regulations would include definitions in subpart A. The minimum risk-based and leverage capital requirements and buffers would be contained in Subpart B and the definition of regulatory capital would be included in subpart C. Subpart D would include the risk-weighted asset calculations required of all banking organizations; these proposed riskweighted asset calculations are described in the Standardized Approach NPR. Subpart E would contain the advanced approaches rules, including changes made pursuant to the advanced approach NPR. The market risk rule would be contained in subpart F. Transition provisions would be in subpart G. The agencies believe that this revision would reduce the burden associated with multiple reference points for applicable capital requirements, promote consistency of capital rules across the banking agencies, and reduce repetition of certain features, such as definitions, across the rules. Table 1 outlines the proposed structure of the agencies’ capital rules, as well as references to the proposed revisions to the PCA rules. TABLE 1—PROPOSED STRUCTURE OF THE AGENCIES’ CAPITAL RULES AND PROPOSED REVISIONS TO THE PCA FRAMEWORK Subpart or regulation Description of content Subpart A (included in the Basel III NPR) ............................................... Subpart B (included in the Basel III NPR) ............................................... Purpose; applicability; reservation of authority; definitions. Minimum capital requirements; minimum leverage capital requirements; capital buffers. Regulatory capital: Eligibility criteria, minority interest, adjustments and deductions. Calculation of standardized total risk-weighted assets for general credit risk, off-balance sheet items, over the counter (OTC) derivative contracts, cleared transactions and default fund contributions, unsettled transactions, securitization exposures, and equity exposures. Description of credit risk mitigation. Calculation of advanced approaches total risk-weighted assets. Subpart C (included in the Basel III NPR) ............................................... Subpart D (included in the Standardized Approach NPR) ...................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Subpart E (included in the Advanced Approaches and Market Risk NPR). Subpart F (included in the Advanced Approaches and Market Risk NPR). Subpart G (included in the Basel III NPR) ............................................... Subpart D of Regulation H (Board), 12 CFR part 6 (OCC), Subpart H of part 324 (FDIC). While the agencies are mindful that the proposal will result in higher capital requirements and costs associated with changing systems to calculate capital 16 See Calculation of market risk-weighted assets. Transition provisions. Revised PCA capital framework, including introduction of a common equity tier 1 capital threshold; revision of the current PCA thresholds to incorporate the proposed regulatory capital minimums; an update of the definition of tangible common equity, and, for advanced approaches organizations only, a supplementary leverage ratio. requirements, the agencies believe that the proposed changes are necessary to address identified weaknesses in the agencies’ current capital rules; strengthen the banking sector and help reduce risk to the deposit insurance fund and the financial system; and revise the agencies’ capital rules 12 U.S.C. 5371. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00007 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 52798 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules consistent with the international agreements and U.S. law. Accordingly, this NPR includes transition arrangements that aim to provide banking organizations sufficient time to adjust to the proposed new rules and that are generally consistent with the transitional arrangements of the Basel capital framework. In December 2010, the BCBS conducted a quantitative impact study of internationally active banks to assess the impact of the capital adequacy standards announced in July 2009 and the Basel III proposal published in December 2009. Overall, the BCBS found that as a result of the proposed changes, banking organizations surveyed will need to hold more capital to meet the new minimum requirements. In addition, quantitative analysis by the Macroeconomic Assessment Group, a working group of the BCBS, found that the stronger Basel capital requirements would lower the probability of banking crises and their associated output losses while having only a modest negative impact on gross domestic product and lending costs, and that the negative impact could be mitigated by phasing the requirements in over time.17 The agencies believe that the benefits of these changes to the U.S. financial system, in terms of the reduction of risk to the deposit insurance fund and the financial system, ultimately outweigh the burden on banking organizations of compliance with the new standards. As part of developing this proposal, the agencies conducted an impact analysis using depository institution and bank holding company regulatory reporting data to estimate the change in capital that banking organizations would be required to hold to meet the proposed minimum capital requirements. The impact analysis assumed the proposed definition of capital for purposes of the numerator and the proposed standardized riskweights for purposes of the denominator, and made stylized assumptions in cases where necessary input data were unavailable from regulatory reports. Based on the agencies’ analysis, the vast majority of banking organizations currently would meet the fully phased-in minimum capital requirements as of March 31, 2012, and those organizations that would not meet the proposed minimum requirements should have ample time to adjust their capital levels by the end of the transition period. Table 2 summarizes key changes proposed in the Basel III and Standardized Approach NPRs and how these changes compare with the agencies’ general risk-based and leverage capital rules. TABLE 2—KEY PROVISIONS OF THE BASEL III AND STANDARDIZED APPROACH NPRS AS COMPARED WITH THE CURRENT RISK-BASED AND LEVERAGE CAPITAL RULES Aspect of proposed requirements Proposed treatment Basel III NPR Minimum Capital Ratios: Common equity tier 1 capital ratio (section 10) ................................ Tier 1 capital ratio (section 10) ......................................................... Total capital ratio (section 10) ........................................................... Leverage ratio (section 10) ............................................................... Components of Capital and Eligibility Criteria for Regulatory Capital Instruments (sections 20–22). Capital Conservation Buffer (section 11) ................................................. Countercyclical Capital Buffer (section 11) .............................................. Introduces a minimum requirement of 4.5 percent. Increases the minimum requirement from 4.0 percent to 6.0 percent. Minimum unchanged (remains at 8.0 percent). Modifies the minimum leverage ratio requirement based on the new definition of tier 1 capital. Introduces a supplementary leverage ratio requirement for advanced approaches banking organizations. Enhances the eligibility criteria for regulatory capital instruments and adds certain adjustments to and deductions from regulatory capital, including increased deductions for mortgage servicing assets (MSAs) and deferred tax assets (DTAs) and new limits on the inclusion of minority interests in capital. Provides that unrealized gains and losses on all available for sale (AFS) securities and gains and losses associated with certain cash flow hedges flow through to common equity tier 1 capital. Introduces a capital conservation buffer of common equity tier 1 capital above the minimum risk-based capital requirements, which must be maintained to avoid restrictions on capital distributions and certain discretionary bonus payments. Introduces for advanced approaches banking organizations a mechanism to increase the capital conservation buffer during times of excessive credit growth. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Standardized Approach NPR Risk-Weighted Assets Credit exposures to: U.S. government and its agencies. U.S. government-sponsored entities. U.S. depository institutions and credit unions. U.S. public sector entities, such as states and municipalities (section 32). Credit exposures to: Foreign sovereigns Foreign banks Foreign public sector entities (section 32) Corporate exposures (section 32) ............................................................ 17 See ‘‘Assessing the Macroeconomic Impact of the Transition to Stronger Capital and Liquidity Requirements’’ (August 2010), available at http:// VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Unchanged. Introduces a more risk-sensitive treatment using the Country Risk Classification measure produced by the Organization for Economic Cooperation and Development. Assigns a 100 percent risk weight to corporate exposures, including exposures to securities firms. www.bis.org/publ/othp10.pdf; ‘‘An assessment of the long-term economic impact of stronger capital PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 and liquidity requirements’’ (August 2010), available at http://www.bis.org/publ/bcbs173.pdf. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules 52799 TABLE 2—KEY PROVISIONS OF THE BASEL III AND STANDARDIZED APPROACH NPRS AS COMPARED WITH THE CURRENT RISK-BASED AND LEVERAGE CAPITAL RULES—Continued Aspect of proposed requirements Proposed treatment Residential mortgage exposures (section 32) .......................................... Introduces a more risk-sensitive treatment based on several criteria, including certain loan characteristics and the loan-to-value-ratio of the exposure. Applies a 150 percent risk weight to certain credit facilities that finance the acquisition, development or construction of real property. Applies a 150 percent risk weight to exposures that are not sovereign exposures or residential mortgage exposures and that are more than 90 days past due or on nonaccrual. Maintains the gross-up approach for securitization exposures. Replaces the current ratings-based approach with a formula-based approach for determining a securitization exposure’s risk weight based on the underlying assets and exposure’s relative position in the securitization’s structure. Introduces more risk-sensitive treatment for equity exposures. Revises the measure of the counterparty credit risk of repo-style transactions. Raises the credit conversion factor for most short-term commitments from zero percent to 20 percent. Removes the 50 percent risk weight cap for derivative contracts. Provides preferential capital requirements for cleared derivative and repo-style transactions (as compared to requirements for non-cleared transactions) with central counterparties that meet specified standards. Also requires that a clearing member of a central counterparty calculate a capital requirement for its default fund contributions to that central counterparty. Provides a more comprehensive recognition of collateral and guarantees. Introduces qualitative and quantitative disclosure requirements, including regarding regulatory capital instruments, for banking organizations with total consolidated assets of $50 billion or more that are not subject to the separate advanced approaches disclosure requirements. High volatility commercial real estate exposures (section 32) ................. Past due exposures (section 32) ............................................................. Securitization exposures (sections 41–45) .............................................. Equity exposures (sections 51–53) .......................................................... Off-balance Sheet Items (sections 33) ..................................................... Derivative Contracts (section 34) ............................................................. Cleared Transactions (section 35) ........................................................... Credit Risk Mitigation (section 36) ........................................................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Disclosure Requirements (sections 61–63) ............................................. Under section 165 of the Dodd-Frank Act, the Board is required to establish the enhanced risk-based and leverage capital requirements for bank holding companies with total consolidated assets of $50 billion or more and nonbank financial companies that the Financial Stability Oversight Council has designated for supervision by the Board (collectively, covered companies).18 The Board published for comment in the Federal Register on January 5, 2012, a proposal regarding the enhanced prudential standards and early remediation requirements. The capital requirements as proposed in the three NPRs would become a key part of the Board’s overall approach to enhancing the risk-based capital and leverage standards applicable to covered companies in accordance with section 165 of the Dodd-Frank Act.19 In addition, the Board intends to supplement the enhanced risk-based capital and leverage requirements included in its January 2012 proposal with a subsequent proposal to implement a quantitative risk-based capital surcharge for covered companies 18 See section 165 of the Dodd-Frank Act (12 U.S.C. 5365). 19 77 FR 594 (January 5, 2012). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 or a subset of covered companies. The BCBS is calibrating a methodology for assessing an additional capital surcharge for global systemically important banks (G–SIBs).20 The Board intends to propose a quantitative riskbased capital surcharge in the United States based on the BCBS approach and consistent with the BCBS’s implementation time frame. The forthcoming proposal would contemplate adopting implementing rules in 2014, and requiring G–SIBs to meet the capital surcharges on a phasedin basis from 2016–2019. The OCC also is reviewing the BCBS proposal and is considering whether to propose to apply a similar surcharge for globally significant national banks. Question 1: The agencies solicit comment on all aspects of the proposals including comment on the specific issues raised throughout this preamble. Commenters are requested to provide a detailed qualitative or quantitative analysis, as appropriate, as well as any relevant data and impact analysis to support their positions. 20 See ‘‘Global Systemically Important Banks: Assessment Methodology and the Additional Loss Absorbency Requirement’’ (July 2011), available at http://www.bis.org/publ/bcbs201.pdf. PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 B. Background In 1989, the agencies established a risk-based capital framework for U.S. national banks, state member and nonmember banks, and bank holding companies with the general risk-based capital rules.21 The agencies based the framework on the ‘‘International Convergence of Capital Measurement and Capital Standards’’ (Basel I), released by the BCBS in 1988.22 The general risk-based capital rules instituted a uniform risk-based capital system that was more risk-sensitive than, and addressed several shortcomings in, the regulatory capital rules in effect prior to 1989. The agencies’ capital rules also included a minimum leverage measure of capital to total assets, established in the early 1980s, to place a constraint on the maximum degree to which a banking organization can leverage its capital base. In 2004, the BCBS introduced a new international capital adequacy framework (Basel II) that was intended 21 See 54 FR 4186 (January 27, 1989) (Board); 54 FR 4168 (January 27, 1989) (OCC); 54 FR 11500 (March 21, 1989). 22 BCBS, ‘‘International Convergence of Capital Measurement and Capital Standards’’ (July 1988), available at http://www.bis.org/publ/bcbs04a.htm. E:\FR\FM\30AUP2.SGM 30AUP2 52800 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 to improve risk measurement and management processes and to better align minimum risk-based capital requirements with risk of the underlying exposures.23 Basel II is designed as a ‘‘three pillar’’ framework encompassing risk-based capital requirements for credit risk, market risk, and operational risk (Pillar 1); supervisory review of capital adequacy (Pillar 2); and market discipline through enhanced public disclosures (Pillar 3). To calculate riskbased capital requirements for credit risk, Basel II provides three approaches: the standardized approach (Basel II standardized approach), the foundation internal ratings-based approach, and the advanced internal ratings-based approach. Basel II also introduces an explicit capital requirement for operational risk, which may be calculated using one of three approaches: the basic indicator approach, the standardized approach, or the advanced measurement approaches. On December 7, 2007, the agencies implemented the advanced approaches rules that incorporated Basel II advanced internal ratings-based approach for credit risk and the advanced measurement approaches for operational risk.24 To address some of the shortcomings in the international capital standards exposed during the crisis, the BCBS issued the ‘‘2009 Enhancements’’ in July 2009 to enhance certain risk-based capital requirements and to encourage stronger management of credit and market risk. The ‘‘2009 Enhancements’’ strengthen the risk-based capital requirements for certain securitization exposures to better reflect their risk, increase the credit conversion factors for certain short-term liquidity facilities, and require that banking organizations conduct more rigorous credit analysis of their exposures.25 In 2010, the BCBS published a comprehensive reform package, Basel III, which is designed to improve the quality and the quantity of regulatory capital and to build additional capacity into the banking system to absorb losses in times of future market and economic stress. Basel III introduces or enhances a number of capital standards, including 23 See ‘‘International Convergence of Capital Measurement and Capital Standards: A Revised Framework’’ (June 2006), available at http://www. bis.org/publ/bcbs128.htm. 24 See 72 FR 69288 (December 7, 2007). 25 In July 2009, the BCBS also issued ‘‘Revisions to the Basel II Market Risk Framework,’’ available at http://www.bis.org/publ/bcbs193.htm. The agencies issued an NPR in January 2011 and a supplement in December 2011, that included provisions to implement the market-risk related provisions. 76 FR 1890 (January 11, 2011); 76 FR 79380 (December 21, 2011). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 a stricter definition of regulatory capital, a minimum tier 1 common equity ratio, the addition of a regulatory capital buffer, a leverage ratio, and a disclosure requirement for regulatory capital instruments. Implementing Basel III is the focus of this NPR, as described below. Certain elements of Basel III are also proposed in the Standardized Approach NPR and the Advanced Approaches and Market Risk NPR, as discussed in those notices. Quality and Quantity of Capital The recent financial crisis demonstrated that the amount of highquality capital held by banks globally was insufficient to absorb losses during that period. In addition, some noncommon stock capital instruments included in tier 1 capital did not absorb losses to the extent previously expected. A lack of clear and easily understood disclosures regarding the amount of high-quality regulatory capital and characteristics of regulatory capital instruments, as well as inconsistencies in the definition of capital across jurisdictions, contributed to the difficulties in evaluating a bank’s capital strength. To evaluate banks’ creditworthiness and overall stability more accurately, market participants increasingly focused on the amount of banks’ tangible common equity, the most loss-absorbing form of capital. The crisis also raised questions about banks’ ability to conserve capital during a stressful period or to cancel or defer interest payments on tier 1 capital instruments. For example, in some jurisdictions banks exercised call options on hybrid tier 1 capital instruments, even when it became apparent that the banks’ capital positions would suffer as a result. Consistent with Basel III, the proposals in this NPR would address these deficiencies by imposing, among other requirements, stricter eligibility criteria for regulatory capital instruments and increasing the minimum tier 1 capital ratio from 4 to 6 percent. To help ensure that a banking organization holds truly loss-absorbing capital, the proposal also introduces a minimum common equity tier 1 capital to total risk-weighted assets ratio of 4.5 percent. In addition, the proposals would require that most regulatory deductions from, and adjustments to, regulatory capital (for example, the deductions related to mortgage servicing assets (MSAs) and deferred tax assets (DTAs) be applied to common equity tier 1 capital. The proposals would also eliminate certain features of the current risk-based capital rules, such as adjustments to regulatory capital to PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 neutralize the effect on the capital account of unrealized gains and losses on AFS debt securities. To reduce the double counting of regulatory capital, Basel III also limits investments in the capital of unconsolidated financial institutions that would be included in regulatory capital and requires deduction from capital if a banking organization has exposures to these institutions that go beyond certain percentages of its common equity tier 1 capital. Basel III also revises riskweights associated with certain items that are subject to deduction from regulatory capital. Finally, to promote transparency and comparability of regulatory capital across jurisdictions, Basel III introduces public disclosure requirements, including those for regulatory capital instruments, that are designed to help market participants assess and compare the overall stability and resiliency of banking organizations across jurisdictions. Capital Conservation and Countercyclical Capital Buffer As noted previously, some banking organizations continued to pay dividends and substantial discretionary bonuses even as their financial condition weakened as a result of the recent financial crisis and economic downturn. Such capital distributions had a significant negative impact on the overall strength of the banking sector. To encourage better capital conservation by banking organizations and to improve the resiliency of the banking system, Basel III and this proposal include limits on capital distributions and discretionary bonuses for banking organizations that do not hold a specified amount of common equity tier 1 capital in addition to the common equity necessary to meet the minimum risk-based capital requirements (capital conservation buffer). Under this proposal, for advanced approaches banking organizations, the capital conservation buffer may be expanded by up to 2.5 percent of riskweighted assets if the relevant national authority determines that financial markets in its jurisdiction are experiencing a period of excessive aggregate credit growth that is associated with an increase in systemwide risk. The countercyclical capital buffer is designed to take into account the macro-financial environment in which banking organizations function and help protect the banking system from the systemic vulnerabilities. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Basel III Leverage Ratio Since the early 1980s, U.S. banking organizations have been subject to a minimum leverage measure of capital to total assets designed to place a constraint on the maximum degree to which a banking organization can leverage its equity capital base. However, prior to the adoption of Basel III, the Basel capital framework did not include a leverage ratio requirement. It became apparent during the crisis that some banks built up excessive on- and off-balance sheet leverage while continuing to present strong risk-based capital ratios. In many instances, banks were forced by the markets to reduce their leverage and exposures in a manner that increased downward pressure on asset prices and further exacerbated overall losses in the financial sector. The BCBS introduced a leverage ratio (the Basel III leverage ratio) to discourage the acquisition of excess leverage and to act as a backstop to the risk-based capital requirements. The Basel III leverage ratio is defined as the ratio of tier 1 capital to a combination of on- and off-balance sheet assets; the minimum ratio is 3 percent. The introduction of the leverage requirement in the Basel capital framework should improve the resiliency of the banking system worldwide by providing an ultimate limit on the amount of leverage a banking organization may incur. As described in section II.B of this preamble, the agencies are proposing to apply the Basel III leverage ratio only to advanced approaches banking organizations as an additional leverage requirement (supplementary leverage ratio). For all banking organizations, the agencies are proposing to update and maintain the current leverage requirement, as revised to reflect the proposed definition of tier 1 capital. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Additional Revisions to the Basel Capital Framework To facilitate the implementation of Basel III, the BCBS issued a series of releases in 2011 in the form of frequently asked questions.26 In addition, in 2011, the BCBS proposed to revise the treatment of counterparty credit risk and specific capital requirements for derivative and repostyle transaction exposures to central counterparties (CCP) to address concerns related to the interconnectedness and complexity of 26 See, e.g., ‘‘Basel III FAQs answered by the Basel Committee’’ (July, October, December 2011), available at http://www.bis.org/list/press_releases/ index.htm. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 the derivatives markets.27 The proposed revisions provide incentives for banking organizations to clear derivatives and repo-style transactions through qualifying central counterparties (QCCP) to help promote market transparency and improve the ability of market participants to unwind their positions quickly and efficiently. The agencies have incorporated these provisions in the Standardized Approach NPR and the Advanced Approaches and Market Risk NPR. II. Minimum Regulatory Capital Ratios, Additional Capital Requirements, and Overall Capital Adequacy A. Minimum Risk-Based Capital Ratios and Other Regulatory Capital Provisions Consistent with Basel III, the agencies are proposing to require that banking organizations comply with the following minimum capital ratios: (1) A common equity tier 1 capital ratio of 4.5 percent; (2) a tier 1 capital ratio of 6 percent; (3) a total capital ratio of 8 percent; and (4) a tier 1 capital to average consolidated assets of 4 percent and, for advanced approaches banking organizations only, an additional requirement tier 1 capital to total leverage exposure ratio of 3 percent.28 As noted above, the common equity tier 1 capital ratio would be a new minimum requirement. It is designed to ensure that banking organizations hold high-quality regulatory capital that is available to absorb losses. The proposed capital ratios would apply to a banking organization on a consolidated basis. Under this NPR, tier 1 capital would equal the sum of common equity tier 1 capital and additional tier 1 capital. Total capital would consist of three capital components: common equity tier 1, additional tier 1, and tier 2 capital. The definitions of each of these categories of regulatory capital are discussed below in section III of this preamble. To align the proposed regulatory capital requirements with the agencies’ current PCA rules, this NPR also would incorporate the proposed revisions to the minimum capital requirements into the agencies’ PCA framework, as further discussed in section II.E of this preamble. 27 The BCBS left unchanged the treatment of exposures to CCPs for settlement of cash transactions such as equities, fixed income, spot foreign exchange and spot commodities. See ‘‘Capitalization of Banking Organization Exposures to Central Counterparties’’ (December 2010, revised November 2011) (CCP consultative release), available at http://www.bis.org/publ/bcbs206.pdf. 28 Advanced approaches banking organizations should refer to section 10 of the proposed rule text and to the Advanced Approaches and Market Risk NPR for a more detailed discussion of the applicable minimum capital ratios. PO 00000 Frm 00011 Fmt 4701 Sfmt 4702 52801 In addition, a banking organization would be subject to a capital conservation buffer in excess of the riskbased capital requirements that would impose limitations on its capital distributions and certain discretionary bonuses, as described in sections II.C and II.D of this preamble. Because the regulatory capital buffer would apply in addition to the regulatory minimum requirements, the restrictions on capital distributions and discretionary bonus payments associated with the regulatory capital buffer would not give rise to any applicable restrictions under section 38 of the Federal Deposit Insurance Act and the agencies’ implementing PCA rules, which apply when an insured institution’s capital levels drop below certain regulatory thresholds.29 As a prudential matter, the agencies have a long-established policy that banking organizations should hold capital commensurate with the level and nature of the risks to which they are exposed, which may entail holding capital significantly above the minimum requirements, depending on the nature of the banking organization’s activities and risk profile. Section II.F of this preamble describes the requirement for overall capital adequacy of banking organizations and the supervisory assessment of an entity’s capital adequacy. Furthermore, consistent with the agencies’ authority under the current capital rules, section 10(d) of the proposal includes a reservation of authority that would allow a banking organization’s primary federal supervisor to require a banking organization to hold a different amount of regulatory capital than otherwise would be required under the proposal, if the supervisor determines that the regulatory capital held by the banking organization is not commensurate with a banking organization’s credit, market, operational, or other risks. B. Leverage Ratio 1. Minimum Tier 1 Leverage Ratio Under the proposal, all banking organizations would remain subject to a 4 percent tier 1 leverage ratio, which would be calculated by dividing an organization’s tier 1 capital by its average consolidated assets, minus amounts deducted from tier 1 capital. The numerator for this ratio would be a banking organization’s tier 1 capital as defined in section 2 of the proposal. The denominator would be its average total on-balance sheet assets as reported on 29 12 U.S.C. 1831o; 12 CFR part 6, 12 CFR part 165 (OCC); 12 CFR 208.45 (Board); 12 CFR 325.105, 12 CFR 390.455 (FDIC). E:\FR\FM\30AUP2.SGM 30AUP2 52802 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules the banking organization’s regulatory report, net of amounts deducted from tier 1 capital.30 In this NPR, the agencies are proposing to remove the tier 1 leverage ratio exception for banking organizations with a supervisory composite rating of 1 that exists under the current leverage rules.31 This exception provides for a 3 percent tier 1 leverage measure for such institutions.32 The current exception would also be eliminated for bank holding companies with a supervisory composite rating of 1 and subject to the market risk rule. Accordingly, as proposed, all banking organizations would be subject to a 4 percent minimum tier 1 leverage ratio. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 2. Supplementary Leverage Ratio for Advanced Approaches Banking Organizations Advanced approaches banking organizations would also be required to maintain the supplementary leverage ratio of tier 1 capital to total leverage exposure of 3 percent. The supplementary leverage ratio incorporates the Basel III definition of tier 1 capital as the numerator and uses a broader exposure base, including certain off-balance sheet exposures (total leverage exposure), for the denominator. The agencies believe that the supplementary leverage ratio is most appropriate for advanced approaches banking organizations because these banking organizations tend to have more significant amounts of off-balance sheet exposures that are not captured by the current leverage ratio. Applying the supplementary leverage ratio rather than the current tier 1 leverage ratio to other banking organizations would increase the complexity of their leverage ratio calculation, and in many cases could result in a reduced leverage capital requirement. The agencies believe that, 30 Specifically, to determine average total onbalance sheet assets, bank holding companies and savings and loan holding companies would use the Consolidated Financial Statements for Bank Holding Companies (FR Y–9C); national banks, state member banks, state nonmember banks, and savings associations would use On-balance sheet Reports of Condition and Income (Call Report). 31 Under the agencies’ current rules, the minimum ratio of tier 1 capital to total assets for strong banking organizations (that is, rated composite ‘‘1’’ under the CAMELS system for state nonmember and national banks, ‘‘1’’ under UFIRS for state member banks, and ‘‘1’’ under RFI/CD for bank holding companies) not experiencing or anticipating significant growth is 3 percent. See 12 CFR 3.6, 12 CFR 167.8 (OCC); 12 CFR 208.43, 12 CFR part 225, Appendix D (Board); 12 CFR 325.3, 12 CFR 390.467 (FDIC). 32 See 12 CFR 3.6 (OCC); 12 CFR part 208, Appendix B and 12 CFR part 225, Appendix D (Board); and 12 CFR part 325.3 (FDIC). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 along with the 5 percent ‘‘wellcapitalized’’ PCA leverage threshold described in section II.E of this preamble, the proposed leverage requirements are, for the majority of banking organizations that are not subject to the advanced approaches rule, both more conservative and simpler than the supplementary leverage ratio. An advanced approaches banking organization would calculate the supplementary leverage ratio, including each of the ratio components, at the end of every month and then calculate a quarterly leverage ratio as the simple arithmetic mean of the three monthly leverage ratios over the reporting quarter. As proposed, total leverage exposure would equal the sum of the following exposures: (1) The balance sheet carrying value of all of the banking organization’s onbalance sheet assets minus amounts deducted from tier 1 capital; (2) The potential future exposure amount for each derivative contract to which the banking organization is a counterparty (or each single-product netting set for such transactions) determined in accordance with section 34 of the proposal; (3) 10 percent of the notional amount of unconditionally cancellable commitments made by the banking organization; and (4) The notional amount of all other off-balance sheet exposures of the banking organization (excluding securities lending, securities borrowing, reverse repurchase transactions, derivatives and unconditionally cancellable commitments). The BCBS continues to assess the Basel III leverage ratio, including through supervisory monitoring during a parallel run period in which the proposed design and calibration of the Basel III leverage ratio will be evaluated, and the impact of any differences in national accounting frameworks material to the definition of the leverage ratio will be considered. A final decision by the BCBS on the measure of exposure for certain transactions and calibration of the leverage ratio is not expected until closer to 2018. Due to these ongoing observations and international discussions on the most appropriate measurement of exposure for repo-style transactions, the agencies are proposing to maintain the current on-balance sheet measurement of repostyle transactions for purposes of calculating total leverage exposure. Under this NPR, a banking organization would measure exposure as the value of repo-style transactions (including repurchase agreements, securities lending and borrowing transactions, and PO 00000 Frm 00012 Fmt 4701 Sfmt 4702 reverse repos) carried as an asset on the balance sheet, consistent with the measure of exposure used in the agencies’ current leverage measure. The agencies are participating in international discussions and ongoing quantitative analysis of the exposure measure for repo-style transactions, and will consider modifying in the future the measurement of repo-style transactions in the calculation of total leverage exposure to reflect results of these international efforts. The agencies are proposing to apply the supplementary leverage ratio as a requirement for advanced approaches banking organizations beginning in 2018, consistent with Basel III. However, beginning on January 1, 2015, advanced approaches banking organizations would be required to calculate and report their supplementary leverage ratio. Question 2: The agencies solicit comments on all aspects of this proposal, including regulatory burden and competitive impact. Should all banking organizations, banking organizations with total consolidated assets above a certain threshold, or banking organizations with certain risk profiles (for example, concentrations in derivatives) be required to comply with the supplementary leverage ratio, and why? What are the advantages and disadvantages of the application of two leverage ratio requirements to advanced approaches banking organizations? Question 3: What modifications to the proposed supplementary leverage ratio should be considered and why? Are there alternative measures of exposure for repo-style transactions that should be considered by the agencies? What alternative measures should be used in cases in which the use of the current exposure method may overstate leverage (for example, in certain cases of calculating derivative exposure) or understate leverage (for example, in the case of credit protection sold)? The agencies request data and supplementary analysis that would support consideration of such alternative measures. Question 4: Given differences in international accounting, particularly the difference in how International Financial Reporting Standards and GAAP treat securities for securities lending, the agencies solicit comments on the adjustments that should be contemplated to mitigate or offset such differences. Question 5: The agencies solicit comments on the advantages and disadvantages of including off-balance sheet exposures in the supplementary leverage ratio. The agencies seek E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 detailed comments, with supporting data, on the proposed method of calculating exposures and estimates of burden, particularly for off-balance sheet exposures. C. Capital Conservation Buffer Consistent with Basel III, the proposal incorporates a capital conservation buffer that is designed to bolster the resilience of banking organizations throughout financial cycles. The buffer would provide incentives for banking organizations to hold sufficient capital to reduce the risk that their capital levels would fall below their minimum requirements during stressful conditions. The capital conservation buffer would be composed of common equity tier 1 capital and would be separate from the minimum risk-based capital requirements. As proposed, a banking organization’s capital conservation buffer would be the lowest of the following measures: (1) The banking organization’s common equity tier 1 capital ratio minus its minimum common equity tier 1 capital ratio; (2) the banking organization’s tier 1 capital ratio minus its minimum tier 1 capital ratio; and (3) the banking organization’s total capital ratio minus its minimum total capital ratio.33 If the banking organization’s common equity tier 1, tier 1 or total capital ratio were less than or equal to its minimum common equity tier 1, tier 1 or total capital ratio, respectively, the banking organization’s capital conservation buffer would be zero. For example, if a banking organization’s common equity tier 1, tier 1, and total capital ratios are 7.5, 9.0, and 10 percent, respectively, and the banking organization’s minimum common equity tier 1, tier 1, and total capital ratio requirements are 4.5, 6, and 8, respectively, the banking organization’s applicable capital conservation buffer would be 2 percent for purposes of establishing a 60 percent maximum payout ratio under table 3. Under the proposal, a banking organization would need to hold a capital conservation buffer in an amount greater than 2.5 percent of total riskweighted assets (plus, for an advanced approaches banking organization, 100 percent of any applicable countercyclical capital buffer amount) to avoid being subject to limitations on capital distributions and discretionary bonus payments to executive officers, as 33 For purposes of the capital conservation buffer calculations, a banking organization would be required to use standardized total risk weighted assets if it is a standardized approach banking organization and it would be required to use advanced total risk weighted assets if it is an advanced approaches banking organization. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 defined under the proposal. The maximum payout ratio would be the percentage of eligible retained income that a banking organization would be allowed to pay out in the form of capital distributions and certain discretionary bonus payments during the current calendar quarter and would be determined by the amount of the capital conservation buffer held by the banking organization during the previous calendar quarter. Under the proposal, eligible retained income would be defined as a banking organization’s net income (as reported in the banking organization’s quarterly regulatory reports) for the four calendar quarters preceding the current calendar quarter, net of any capital distributions, certain discretionary bonus payments, and associated tax effects not already reflected in net income. A banking organization’s maximum payout amount for the current calendar quarter would be equal to the banking organization’s eligible retained income, multiplied by the applicable maximum payout ratio in accordance with table 3. A banking organization with a capital conservation buffer that is greater than 2.5 percent (plus, for an advanced approaches banking organization, 100 percent of any applicable countercyclical buffer) would not be subject to a maximum payout amount as a result of the application of this provision (but the agencies’ authority to restrict capital distributions for other reasons remains undiminished). In a scenario where a banking organization’s risk-based capital ratios fall below its minimum risk-based capital ratios plus 2.5 percent of total risk-weighted assets, the maximum payout ratio would also decline, in accordance with table 3. A banking organization that becomes subject to a maximum payout ratio would remain subject to restrictions on capital distributions and certain discretionary bonus payments until it is able to build up its capital conservation buffer through retained earnings, raising additional capital, or reducing its riskweighted assets. In addition, as a general matter, a banking organization would not be able to make capital distributions or certain discretionary bonus payments during the current calendar quarter if the banking organization’s eligible retained income is negative and its capital conservation buffer is less than 2.5 percent as of the end of the previous quarter. As illustrated in table 3, the capital conservation buffer is divided into equal quartiles, each associated with increasingly stringent limitations on capital distributions and discretionary PO 00000 Frm 00013 Fmt 4701 Sfmt 4702 52803 bonus payments to executive officers as the capital conservation buffer falls closer to zero percent. As described in more detail in the next section, each quartile, associated with a certain maximum payout ratio in table 3, would expand proportionately for advanced approaches banking organizations when the countercyclical capital buffer amount is greater than zero. The agencies propose to define a capital distribution as: (1) A reduction of tier 1 capital through the repurchase of a tier 1 capital instrument or by other means; (2) a reduction of tier 2 capital through the repurchase, or redemption prior to maturity, of a tier 2 capital instrument or by other means; (3) a dividend declaration on any tier 1 capital instrument; (4) a dividend declaration or interest payment on any tier 2 capital instrument if such dividend declaration or interest payment may be temporarily or permanently suspended at the discretion of the banking organization; or (5) any similar transaction that the agencies determine to be in substance a distribution of capital. The proposed definition is similar in effect to the definition of capital distribution in the Board’s rule requiring annual capital plan submissions for bank holding companies with $50 billion or more in total assets.34 The agencies propose to define a discretionary bonus payment as a payment made to an executive officer of a banking organization or an individual with commensurate responsibilities within the organization, such as a head of a business line, where: (1) The banking organization retains discretion as to the fact of the payment and as to the amount of the payment until the discretionary bonus is paid to the executive officer; (2) the amount paid is determined by the banking organization without prior promise to, or agreement with, the executive officer; and (3) the executive officer has no contract right, express or implied, to the bonus payment. An executive officer would be defined as a person who holds the title or, without regard to title, salary, or compensation, performs the function of one or more of the following positions: president, chief executive officer, executive chairman, chief operating officer, chief financial officer, chief investment officer, chief legal officer, chief lending officer, chief risk officer, or head of a major business line, and other staff that the board of directors of the banking organization deems to have 34 See E:\FR\FM\30AUP2.SGM 12 CFR 225.8. 30AUP2 52804 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules equivalent responsibility.35 The purpose of limiting restrictions on discretionary bonus payments to executive officers is to focus these measures on the individuals within a banking organization who could expose the organization to the greatest risk. The agencies note that a banking organization may otherwise be subject to limitations on capital distributions under other laws or regulations.36 Table 3 shows the relationship between the capital conservation buffer and the maximum payout ratio. The maximum dollar amount that a banking organization would be permitted to pay out in the form of capital distributions or discretionary bonus payments during the current calendar quarter would be equal to the maximum payout ratio multiplied by the banking organization’s eligible retained income. The calculation of the maximum payout amount would be made as of the last day of the previous calendar quarter and any resulting restrictions would apply during the current calendar quarter. TABLE 3—CAPITAL CONSERVATION BUFFER AND MAXIMUM PAYOUT RATIO 37 Maximum payout ratio (as a percentage of eligible retained income) Capital conservation buffer (as a percentage of total risk-weighted assets) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Greater than 2.5 percent .............................................................................................................................. Less than or equal to 2.5 percent, and greater than 1.875 percent ............................................................ Less than or equal to 1.875 percent, and greater than 1.25 percent .......................................................... Less than or equal to 1.25 percent, and greater than 0.625 percent .......................................................... Less than or equal to 0.625 percent ............................................................................................................ 76 FR 21170 (April 14, 2011). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 with the agencies’ current practice with respect to regulatory restrictions on dividend payments and other capital distributions, each agency would retain its authority to permit a banking organization supervised by that agency to make a capital distribution or a discretionary bonus payment, if the agency determines that the capital distribution or discretionary bonus payment would not be contrary to the purposes of the capital conservation buffer or the safety and soundness of the banking institution. In making such a determination, the agency would consider the nature and extent of the request and the particular circumstances giving rise to the request. The agencies are proposing that banking organizations that are not subject to the advanced approaches rule would calculate their capital conservation buffer using total riskweighted assets as calculated by all banking organizations, and that banking organizations subject to the advanced approaches rule would calculate the buffer using advanced approaches total risk-weighted assets. Under the proposed approach, internationally active U.S. banking organizations using the advanced approaches would face capital conservation buffers determined in a manner comparable to those of their foreign competitors. Depending on the difference in risk-weighted assets calculated under the two approaches, capital distributions and bonus restrictions applied to an advanced approaches banking organization could be more or less stringent than if its capital conservation buffer were based on risk-weighted assets as calculated by all banking organizations. Question 6: The agencies seek comment on all aspects of the proposed capital buffer framework, including issues of domestic and international competitive equity, and the adequacy of the proposed buffer to provide incentives for banking organizations to hold sufficient capital to withstand a stress event and still remain above regulatory minimum capital levels. What are the advantages and disadvantages of requiring advanced approaches banking organizations to calculate their capital buffers using total risk-weighted assets that are the greater of standardized total risk-weighted assets and advanced total risk-weighted assets? What is the potential effect of the proposal on banking organizations’ processes for planning and executing capital distributions and utilization of discretionary bonus payments to retain key staff? What modifications, if any, should the agencies consider? Question 7: The agencies solicit comments on the scope of the definition of executive officer for purposes of the limitations on discretionary bonus payments under the proposal. Is the scope too broad or too narrow? Should other categories of employees who could expose the institution to material risk be included within the scope of employees whose discretionary bonuses could be subject to the restriction? If so, how should such a class of employees be defined? What are the potential implications for a banking organization of restricting discretionary bonus payments for executive officers or for broader classes of employees? Please 36 See 12 U.S.C. 56, 60, and 1831o(d)(1); 12 CFR 1467a(f); see also 12 CFR 225.8. For example, a banking organization with a capital conservation buffer between 1.875 and 2.5 percent (for example, a common equity tier 1 capital ratio of 6.5 percent, a tier 1 capital ratio of 8 percent, or a total capital ratio of 10 percent) as of the end of the previous calendar quarter would be allowed to distribute no more than 60 percent of its eligible retained income in the form of capital distributions or discretionary bonus payments during the current calendar quarter. That is, the banking organization would need to conserve at least 40 percent of its eligible retained income during the current calendar quarter. A banking organization with a capital conservation buffer of less than or equal to 0.625 percent (for example, a banking organization with a common equity tier 1 capital ratio of 5.0 percent, a tier 1 capital ratio of 6.5 percent, or a total capital ratio of 8.5 percent) as of the end of the previous calendar quarter would not be permitted to make any capital distributions or discretionary bonus payments during the current calendar quarter. In contrast, a banking organization with a capital conservation buffer of more than 2.5 percent (for example, a banking organization with a common equity tier 1 capital ratio of 7.5 percent, a tier 1 capital ratio of 9.0 percent, and a total capital ratio of 11.0 percent) as of the end of the previous calendar quarter would not be subject to restrictions on the amount of capital distributions and discretionary bonus payments that could be made during the current calendar quarter. Consistent 35 See No payout ratio limitation applies. 60 percent. 40 percent. 20 percent. 0 percent. 37 Calculations in this table are based on the assumption that the countercyclical buffer amount is zero. PO 00000 Frm 00014 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 provide data and analysis to support your views. Question 8: What are the pros and cons of the proposed definition for eligible retained income in the context of the proposed quarterly limitations on capital distributions and discretionary bonus payments? Question 9: What would be the impact, if any, in terms of the cost of raising new capital, of not allowing a banking organization that is subject to a maximum payout ratio of zero percent to make a penny dividend to common stockholders? Please provide data to support any responses. D. Countercyclical Capital Buffer Under Basel III, the countercyclical capital buffer is designed to take into account the macro-financial environment in which banking organizations function and to protect the banking system from the systemic vulnerabilities that may build-up during periods of excessive credit growth, then potentially unwind in a disorderly way that may cause disruptions to financial institutions and ultimately economic activity. As proposed and consistent with Basel III, the countercyclical capital buffer would serve as an extension of the capital conservation buffer. The agencies propose to apply the countercyclical capital buffer only to advanced approaches banking organizations, because large banking organizations generally are more interconnected with other institutions in the financial system. Therefore, the marginal benefits to financial stability from a countercyclical buffer function should be greater with respect to such institutions. Application of the countercyclical buffer to advanced approaches banking organizations also reflects the fact that making cyclical adjustments to capital requirements is costly for institutions to implement and the marginal costs are higher for smaller institutions. The countercyclical capital buffer aims to protect the banking system and reduce systemic vulnerabilities in two ways. First, the accumulation of a capital buffer during an expansionary phase could increase the resilience of the banking system to declines in asset prices and consequent losses that may occur when the credit conditions weaken. Specifically, when the credit cycle turns following a period of excessive credit growth, accumulated capital buffers would act to absorb the above-normal losses that a banking organization would likely face. Consequently, even after these losses are realized, banking organizations would VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 remain healthy and able to access funding, meet obligations, and continue to serve as credit intermediaries. Countercyclical capital buffers may also reduce systemic vulnerabilities and protect the banking system by mitigating excessive credit growth and increases in asset prices that are not supported by fundamental factors. By increasing the amount of capital required for further credit extensions, countercyclical capital buffers may limit excessive credit extension. Consistent with Basel III, the agencies propose a countercyclical capital buffer that would augment the capital conservation buffer under certain circumstances, upon a determination by the agencies. The countercyclical capital buffer amount in the U.S. would initially be set to zero, but it could increase if the agencies determine that there is excessive credit in the markets, possibly leading to subsequent wide-spread market failures.38 The agencies expect to consider a range of macroeconomic, financial, and supervisory information indicating an increase in systemic risk including, but not limited to, the ratio of credit to gross domestic product, a variety of asset prices, other factors indicative of relative credit and liquidity expansion or contraction, funding spreads, credit condition surveys, indices based on credit default swap spreads, options implied volatility, and measures of systemic risk. The agencies anticipate making such determinations jointly. Because the countercyclical capital buffer amount would be linked to the condition of the overall U.S. financial system and not the characteristics of an individual banking organization, the agencies expect that the countercyclical capital buffer amount would be the same at the depository institution and holding company levels. To provide banking organizations with time to adjust to any changes, the agencies expect to announce an increase in the countercyclical capital buffer amount up to12 months prior to implementation. If the agencies determine that a more immediate implementation would be necessary based on economic conditions, the agencies may announce implementation of a countercyclical capital buffer in less than 12 months. The agencies would make their determination and announcement in accordance with any applicable legal requirements. The agencies would follow the same 38 The proposed operation of the countercyclical capital buffer is also consistent with section 616(c) of the Dodd-Frank Act. See 12 U.S.C. 3907(a)(1). PO 00000 Frm 00015 Fmt 4701 Sfmt 4702 52805 procedures in adjusting the countercyclical capital buffer applicable for exposures located in foreign jurisdictions. A decrease in the countercyclical capital buffer amount would become effective the day following announcement or the earliest date permitted by applicable law or regulation. In addition, the countercyclical capital buffer amount would return to zero percent 12 months after its effective date, unless an agency announces a decision to maintain the adjusted countercyclical capital buffer amount or adjust it again before the expiration of the 12-month period. In the United States, the countercyclical capital buffer would augment the capital conservation buffer by up to 2.5 percent of a banking organization’s total risk-weighted assets. For other jurisdictions, an advanced approaches banking organization would determine its countercyclical capital buffer amount by calculating the weighted average of the countercyclical capital buffer amounts established for the national jurisdictions where the banking organization has private sector credit exposures, as defined below in this section. The contributing weight assigned to a jurisdiction’s countercyclical capital buffer amount would be calculated by dividing the total risk-weighted assets for the banking organization’s private sector credit exposures located in the jurisdiction by the total risk-weighted assets for all of the banking organization’s private sector credit exposures.39 As proposed, a private sector credit exposure would be defined as an exposure to a company or an individual that is included in credit risk-weighted assets, not including an exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, a multilateral development bank (MDB), a public sector entity (PSE), or a government sponsored entity (GSE). The geographic location of a private sector credit exposure (that is not a securitization exposure) would be the national jurisdiction where the borrower is located (that is, where the borrower 39 As described in the discussion of the capital conservation buffer, an advanced approaches banking organization would calculate its total riskweighted assets using the advanced approaches rules for purposes of determining the capital conservation buffer amount. An advanced approaches banking organizations may also be subject to the capital plan rule and its stress testing provisions, which may have a separate effect on a banking organization’s capital distributions. See 12 CFR 225.8. E:\FR\FM\30AUP2.SGM 30AUP2 52806 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules is incorporated, chartered, or similarly established or, if it is an individual, where the borrower resides). If, however, the decision to issue the private sector credit exposure is based primarily on the creditworthiness of the protection provider, the location of the non-securitization exposure would be the location of the protection provider. The location of a securitization exposure would be the location of the borrowers of the underlying exposures. If the borrowers on the underlying exposures are located in multiple jurisdictions, the location of a securitization exposure would be the location of the borrowers of the underlying exposures in one jurisdiction with the largest proportion of the aggregate unpaid principal balance of the underlying exposures. Table 4 illustrates how an advanced approaches banking organization would calculate the weighted average countercyclical capital buffer. In the following example, the countercyclical capital buffer established in the various jurisdictions in which the banking organization has private sector credit exposures is reported in column A. Column B contains the banking organization’s risk-weighted asset amounts for the private sector credit exposures in each jurisdiction. Column C shows the contributing weight for each countercyclical buffer amount, which is calculated by dividing each of the rows in column B by the total for column B. Column D shows the contributing weight applied to each countercyclical capital buffer amount, calculated as the product of the corresponding contributing weight (column C) and the countercyclical capital buffer set by each jurisdiction’s national supervisor (column A). The sum of the rows in column D shows the banking organization’s weighted average countercyclical capital buffer, which is 1.4 percent of risk-weighted assets. TABLE 4—EXAMPLE OF WEIGHTED AVERAGE COUNTERCYCLICAL CAPITAL BUFFER CALCULATION FOR ADVANCED APPROACHES BANKING ORGANIZATIONS (A) Countercyclical buffer amount set by national supervisor (percent) (B) Banking organization’s risk-weighted assets (RWA) for private sector credit exposures ($b) (C) Contributing weight (column B/column B total) (D) Contributing weight applied to each countercyclical capital buffer amount (column A * column C) 2.0 1.5 1 250 100 500 0.29 0.12 0.59 0.6 0.2 0.6 Total .......................................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Non-U.S. jurisdiction 1 ..................... Non-U.S. jurisdiction 2 ..................... U.S. .................................................. ........................................ 850 1.00 1.4 A banking organization’s maximum payout ratio for purposes of its capital conservation buffer would vary depending on its countercyclical buffer amount. For instance, if its countercyclical capital buffer amount is equal to zero percent of total riskweighted assets, the banking organization that held only U.S. credit exposures would need to hold a combined capital conservation buffer of at least 2.5 percent to avoid restrictions on its capital distributions and certain discretionary bonus payments. However, if its countercyclical capital buffer amount is equal to 2.5 percent of total risk-weighted assets, the banking organization whose assets consist of only U.S. credit exposures would need to hold a combined capital conservation and countercyclical buffer of at least 5 percent to avoid restrictions on its capital distributions and discretionary bonus payments. Question 10: The agencies solicit comment on potential inputs used in determining whether excessive credit growth is occurring and whether a formula-based approach might be useful in determining the appropriate level of the countercyclical capital buffer. What additional factors, if any, should the agencies consider when determining the countercyclical capital buffer amount? VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 What are the pros and cons of using a formula-based approach and what factors might be incorporated in the formula to determine the level of the countercyclical capital buffer amount? Question 11: The agencies recognize that a banking organization’s riskweighted assets for private sector credit exposures should include relevant covered positions under the market risk capital rule and solicit comment regarding appropriate methodologies for incorporating these positions; specifically, what position-specific or portfolio-specific methodologies should be used for covered positions with specific risk and particularly those for which a banking organization uses models to measure specific risk? Question 12: The agencies solicit comment on the appropriateness of the proposed 12-month prior notification period to adjust to a newly implemented or adjusted countercyclical capital buffer amount. E. Prompt Corrective Action Requirements Section 38 of the Federal Deposit Insurance Act directs the federal banking agencies to take prompt corrective action (PCA) to resolve the problems of insured depository institutions at the least cost to the PO 00000 Frm 00016 Fmt 4701 Sfmt 4702 Deposit Insurance Fund.40 To facilitate this purpose, the agencies have established five regulatory capital categories in the current PCA regulations that include capital thresholds for the leverage ratio, tier 1 risk-based capital ratio, and the total risk-based capital ratio for insured depository institutions. These five PCA categories under section 38 of the Act and the PCA regulations are: ‘‘Well capitalized,’’ ‘‘adequately capitalized,’’ ‘‘undercapitalized,’’ ‘‘significantly undercapitalized,’’ and ‘‘critically undercapitalized.’’ Insured depository institutions that fail to meet these capital measures are subject to increasingly strict limits on their activities, including their ability to make capital distributions, pay management fees, grow their balance sheet, and take other actions.41 Insured depository institutions are expected to be closed within 90 days of becoming ‘‘critically undercapitalized,’’ unless their primary federal regulator takes such other action as the agency determines, with the concurrence of the 40 12 U.S.C. 1831o. U.S.C. 1831o(e)–(i). See 12 CFR part 6 (OCC); 12 CFR part 208, subpart D (Board); 12 CFR part 325, subpart B (FDIC). 41 12 E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules FDIC, would better achieve the purpose of PCA.42 All insured depository institutions, regardless of total asset size or foreign exposure, are required to compute PCA capital levels using the agencies’ general risk-based capital rules, as supplemented by the market risk capital rule. Under this NPR, the agencies are proposing to augment the PCA capital categories by introducing a common equity tier 1 capital measure for four of the five PCA categories (excluding the critically undercapitalized PCA category).43 In addition, the agencies are proposing to amend the current PCA leverage measure to include in the leverage measure for the ‘‘adequately capitalized’’ and ‘‘undercapitalized’’ capital categories for advanced approaches depository institutions an additional leverage ratio based on the leverage ratio in Basel III. All banking organizations would continue to be subject to leverage measure thresholds using the current tier 1, or ‘‘standard’’ leverage ratio in the form of tier 1 capital to total assets. In addition, the agencies are proposing to revise the three current capital measures for the five PCA categories to reflect the changes to the definition of capital, as provided in the proposed revisions to the agencies’ PCA regulations. The proposed changes to the current minimum PCA thresholds and the introduction of a new common equity tier 1 capital measure would take effect January 1, 2015. Consistent with transition provisions in Basel III, the proposed amendments to the current PCA leverage measure for advanced 52807 approaches depository institutions would take effect on January 1, 2018. In contrast, changes to the definitions of the individual capital components that are used to calculate the relevant capital measures under PCA would coincide with the transition arrangements discussed in section V of the preamble, or with the transition provisions of other capital regulations, as applicable. Thus, the changes to these definitions, including any deductions or modifications to capital, automatically would flow through to the definitions in the PCA framework. Table 5 sets forth the current riskbased and leverage capital thresholds for each of the PCA capital categories for insured depository institutions. TABLE 5—CURRENT PCA LEVELS Total RiskBased Capital (RBC) measure (total RBC ratio—percent) Tier 1 RBC measure (tier 1 RBC ratio—percent) Well Capitalized .................... Adequately Capitalized ......... ≥10 ≥8 ≥6 ≥4 Undercapitalized ................... <8 <4 <4 (or <3) Significantly undercapitalized <6 <3 <3 Requirement Leverage measure (tier 1 (standard) leverage ratio—percent) 44 ≥4 ≥5 (or ≥3) Tangible Equity to Total Assets ≤2 Critically undercapitalized ..... Table 6 sets forth the proposed riskbased and leverage capital thresholds for each of the PCA capital categories for insured depository institutions that are PCA requirements None. May limit nonbanking activities at DI’s FHC and includes limits on brokered deposits. Includes adequately capitalized restrictions, and also includes restrictions on asset growth; dividends; requires a capital plan. Includes undercapitalized restrictions, and also includes restrictions on sub-debt payments. Generally receivership/conservatorship within 90 days. not advanced approaches banks. For each PCA category except critically undercapitalized, an insured depository institution would be required to meet a minimum common equity tier 1 capital ratio, in addition to a minimum tier 1 risk-based capital ratio, total risk-based capital ratio, and leverage ratio. TABLE 6—PROPOSED PCA LEVELS FOR INSURED DEPOSITORY INSTITUTIONS NOT SUBJECT TO THE ADVANCED APPROACHES RULE Total RBC measure (total RBC ratio—percent) Requirement Tier 1 RBC measure (tier 1 RBC ratio—percent) Common equity tier 1 RBC measure (common equity tier 1 RBC ratio (percent) Leverage Measure (leverage ratio—percent) ≥10 ≥8 <8 <6 ≥8 ≥6 <6 <4 ≥6.5 ≥4.5 <4.5 <3 ≥5 ≥4 <4 <3 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Well Capitalized ............................ Adequately Capitalized ................. Undercapitalized ........................... Significantly undercapitalized ........ Critically undercapitalized ............. PCA requirements Unchanged from current rules *. Do. Do. Do. Tangible Equity (defined as tier 1 capital plus non-tier 1 perpetual preferred stock) to Total Assets ≤2 Do. * Additional restrictions on capital distributions that are not reflected in the agencies’ proposed revisions to the PCA regulations are described in section II.C of this preamble. 42 12 U.S.C. 1831o(g)(3). 12 U.S.C. 1831o(c)(1)(B)(i). 44 The minimum ratio of tier 1 capital to total assets for strong depository institutions (rated composite ‘‘1’’ under the CAMELS system and not 43 See VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00017 Fmt 4701 Sfmt 4702 experiencing or anticipating significant growth) is 3 percent. E:\FR\FM\30AUP2.SGM 30AUP2 52808 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules To be well capitalized, an insured depository institution would be required to maintain a total risk-based capital ratio equal to or greater than 10 percent; a tier 1 capital ratio equal to or greater than 8 percent; a common equity tier 1 capital ratio equal to or greater than 6.5 percent; and a leverage ratio equal to or greater than 5 percent. An adequately capitalized depository institution would be required to maintain a total risk-based capital ratio equal to or greater than 8 percent; a tier 1 capital ratio equal to or greater than 6 percent; common equity tier 1 capital ratio equal to or greater than 4.5 percent; and a leverage ratio equal to or greater than 4 percent.45 An insured depository institution would be considered undercapitalized under the proposal if its total capital ratio were less than 8 percent, or if its tier 1 capital ratio were less than 6 percent, if its common equity tier 1 ratio were less than 4.5 percent, or if its leverage ratio were less than 4 percent. If an institution’s tier 1 capital ratio were less than 4 percent, or if its common equity tier 1 ratio were less than 3 percent, it would be considered significantly undercapitalized. The other numerical capital ratio thresholds for being significantly undercapitalized would be unchanged.46 Table 7 sets forth the proposed riskbased and leverage thresholds for advanced approaches depository institutions. As indicated in the table, in addition to the PCA requirements and categories described above, the leverage measure for advanced approaches depository institutions in the adequately capitalized and undercapitalized PCA capital categories would include a supplementary leverage ratio based on the Basel III leverage ratio. TABLE 7—PROPOSED PCA LEVELS FOR INSURED DEPOSITORY INSTITUTIONS SUBJECT TO THE ADVANCED APPROACHES RULE Requirement Total RBC measure (total RBC ratio— percent) Tier 1 RBC measure (tier 1 RBC ratio— percent) Common Equity tier 1 RBC measure (common equity tier 1 RBC ratio percent) Leverage measure Leverage ratio (percent) Supplementary leverage ratio (percent) PCA requirements Unchanged from current rule *. Do. Well Capitalized ........ ≥10 ≥8 ≥6.5 ≥5 Not applicable ........... Adequately Capitalized. Undercapitalized ....... Significantly undercapitalized. ≥8 ≥6 ≥4.5 ≥4 ≥3 .............................. <8 <6 <6 <4 <4.5 <3 <4 <3 <3 .............................. Not applicable ........... Do. Do. Not applicable ........... Do. Critically undercapitalized. Tangible Equity (defined as tier 1 capital plus non-tier 1 perpetual preferred stock) to Total Assets ™2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 * Additional restrictions on capital distributions that are not reflected in the agencies’ proposed revisions to the PCA regulations are described in section II.C of this preamble. As discussed above, the agencies believe that the supplementary leverage ratio is an important measure of an advanced approaches depository institution’s ability to support its on-and off-balance sheet exposures, and advanced approaches institutions tend to have significant amounts of offbalance sheet exposures that are not captured by the current leverage ratio. Consistent with other minimum ratio requirements, the agencies propose that the minimum requirement for the supplementary leverage ratio in section 10 of the proposal would be the minimum supplementary leverage ratio a banking organization would need to maintain in order to be adequately capitalized. With respect to the other PCA categories (other than critically undercapitalized), the agencies are proposing ranges of minimum thresholds for comment. The agencies intend to specify the minimum threshold for each of those categories when the proposed PCA requirements are finalized. Under the proposed PCA framework, for each measure other than the leverage measure, an advanced approaches depository institution would be well capitalized, adequately capitalized, undercapitalized, significantly undercapitalized, or critically undercapitalized on the same basis as all other insured depository institutions. An advanced approaches bank would also be subject to the same thresholds with respect to the leverage ratio on the same basis as other insured depository institutions. In addition, with respect to the supplementary leverage ratio, in order to be adequately capitalized, an advanced approaches depository institution would be required to maintain a supplementary leverage ratio of greater than or equal to 3 percent. An advanced approaches depository institution would be undercapitalized if its supplementary leverage ratio were less than 3 percent. Question 13: The agencies seek comment regarding the proposed incorporation of the supplementary leverage ratio into the PCA framework, as well as the proposed ranges of PCA categories for the supplementary leverage ratio. Within the proposed ranges, what is the appropriate percentage for each PCA category? Please provide data to support your answer. As discussed in section II of this preamble, the current PCA framework permits an insured depository institution that is rated composite 1 under the CAMELS rating system and not experiencing or anticipating significant growth to maintain a 3 percent ratio of tier 1 capital to average total consolidated assets (leverage ratio) rather than the 4.0 percent minimum 45 An insured depository institution is considered adequately capitalized if it meets the qualifications for the adequately capitalized capital category and does not qualify as well capitalized. 46 Under current PCA standards, in order to qualify as well capitalized, an insured depository institution must not be subject to any written agreement, order, capital directive, or prompt corrective action directive issued by the Board pursuant to section 8 of the Federal Deposit Insurance Act, the International Lending Supervision Act of 1983, or section 38 of the Federal Deposit Insurance Act, or any regulation thereunder, to meet a maintain a specific capital level for any capital measure. See 12 CFR 6.4(b)(1)(iv) (OCC); 12 CFR 208.43(b)(1)(iv) (Board); 12 CFR 325.103(b)(1)(iv) (FDIC). The agencies are not proposing any changes to this requirement. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules leverage ratio that is otherwise required for an institution to be adequately capitalized under PCA. The agencies believe that it would be appropriate for all insured depository institutions, regardless of their CAMELS rating, to meet the same minimum leverage ratio requirements. Accordingly, the agencies propose to eliminate the 3 percent leverage ratio requirement for insured depository institutions with composite 1 CAMELS ratings. The proposal would increase some of the existing PCA capital requirements while maintaining the structure of the current PCA framework. For example, similar to the current PCA requirements, the risk-based capital ratios for well capitalized banking organizations would be two percentage points higher than the ratios for adequately capitalized banking organizations. The tier 1 leverage ratio for well capitalized banking organizations would be one percentage point higher than for adequately capitalized banking organizations. While the PCA levels do not explicitly incorporate the capital conservation buffer, the agencies believe that the PCA and capital conservation buffer frameworks will complement each other to ensure that banking organizations hold an adequate amount of common equity tier 1 capital. The determination of whether an insured depository institution is critically undercapitalized for PCA purposes is based on its ratio of tangible equity to total assets. This is a statutory requirement within the PCA framework, and the experience of the recent financial crisis has confirmed that tangible equity is of critical importance in assessing the viability of an insured depository institution. Tangible equity for PCA purposes is currently defined as including core capital elements, which consist of (1) Common stock holder’s equity, (2) qualifying noncumulative perpetual preferred stock (including related surplus), and (3) minority interest in the equity accounts of consolidated subsidiaries; plus outstanding cumulative preferred perpetual stock; minus all intangible assets except mortgage servicing rights that are included in tier 1 capital. The current PCA definition of tangible equity does not address the treatment of DTAs in determining whether an insured depository institution is critically undercapitalized. The agencies propose to clarify the calculation of the capital measures for the critically undercapitalized PCA category by revising the definition of tangible equity to consist of tier 1 capital, plus outstanding perpetual preferred stock (including related VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 surplus) not included in tier 1 capital. The revised definition would more appropriately align the calculation of tangible equity with the calculation of tier 1 capital generally for regulatory capital requirements. Assets included in a banking organization’s equity account under GAAP, such as DTAs, would be included in tangible equity only to the extent that they are included in tier 1 capital. This modification should promote consistency and provide for clearer boundaries across and between the various PCA categories. In connection with this modification to the definition of tangible equity, the agencies propose to retain the current critically undercapitalized capital category threshold for insured depository institutions of less than 2 percent tangible equity to total assets. Based on the proposed new definition of tier 1 capital, the agencies believe the proposed critically undercapitalized threshold is at least as stringent as the agencies’ current approach. Question 14: The agencies solicit comment on the proposed regulatory capital requirements in the PCA framework, the introduction of a common equity tier 1 ratio as a new capital measure for purposes of PCA, and the proposed PCA thresholds for each PCA category. In addition to the changes described in this section, the OCC is proposing the following amendments to 12 CFR part 6 to integrate the rules governing national banks and federal savings associations. Under the proposal, part 6 would be applicable to federal savings associations. The OCC also would make various non-substantive, technical amendments to part 6. In addition, the OCC proposes to rescind the current PCA rules in part 165 governing federal savings associations, with the exception of sections 165.8, Procedures for reclassifying a federal savings association based on criteria other than capital, and 165.9, Order to dismiss a director or senior executive officer; and to make non-substantive, technical amendments to sections 165.8 and 165.9. Any substantive issues regarding sections 165.8 and 165.9 will be addressed as part of a separate integration rulemaking. F. Supervisory Assessment of Overall Capital Adequacy Capital helps to ensure that individual banking organizations can continue to serve as credit intermediaries even during times of stress, thereby promoting the safety and soundness of the overall U.S. banking system. The agencies’ current capital rules indicate that the capital PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 52809 requirements are minimum standards based on broad credit-risk considerations. The risk-based capital ratios do not explicitly take account of the quality of individual asset portfolios or the range of other types of risk to which banking organizations may be exposed, such as interest-rate, liquidity, market, or operational risks. A banking organization is generally expected to have internal processes for assessing capital adequacy that reflect a full understanding of its risks and to ensure that it holds capital corresponding to those risks to maintain overall capital adequacy.47 Accordingly, a supervisory assessment of capital adequacy must take account of the internal processes for capital adequacy, as well as risks and other factors that can affect a banking organization’s financial condition, including, for example, the level and severity of problem assets and its exposure to operational and interest rate risk. For this reason, a supervisory assessment of capital adequacy may differ significantly from conclusions that might be drawn solely from the level of a banking organization’s risk-based capital ratios. In light of these considerations, as a prudential matter, a banking organization is generally expected to operate with capital positions well above the minimum risk-based ratios and to hold capital commensurate with the level and nature of the risks to which it is exposed, which may entail holding capital significantly above the minimum requirement. For example, banking organizations contemplating significant expansion proposals are expected to maintain strong capital levels substantially above the minimum ratios and should not allow significant diminution of financial strength below these strong levels to fund their expansion plans. Banking organizations with high levels of risk are also expected to operate even further above minimum standards. In addition to evaluating the appropriateness of a banking organization’s capital level given its overall risk profile, the supervisory assessment takes into account the quality and trends in a banking organization’s capital composition, including the share of common and non-common-equity capital elements. Section 10(d) of the proposal would maintain and reinforce these supervisory expectations by requiring that a banking organization maintain capital commensurate with the level 47 The Basel framework incorporates similar requirements under Pillar 2 of Basel II. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52810 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules and nature of all risks to which it is exposed and that a banking organization have a process for assessing its overall capital adequacy in relation to its risk profile, as well as a comprehensive strategy for maintaining an appropriate level of capital. The supervisory evaluation of a banking organization’s capital adequacy, including compliance with section 10(d), may include such factors as whether the banking organization is newly chartered, entering new activities, or introducing new products. The assessment would also consider whether a banking organization is receiving special supervisory attention, has or is expected to have losses resulting in capital inadequacy, has significant exposure due to risks from concentrations in credit or nontraditional activities, or has significant exposure to interest rate risk, operational risk, or could be adversely affected by the activities or condition of a banking organization’s holding company. In addition, a banking organization should have an appropriately rigorous process for assessing its overall capital adequacy in relation to its risk profile and a comprehensive strategy for maintaining an appropriate level of capital, consistent with the longstanding approach employed by the agencies in their supervision of banking organizations. Supervisors also would evaluate the comprehensiveness and effectiveness of a banking organization’s capital planning in light of its activities and capital levels. An effective capital planning process would require a banking organization to assess the risks to which it is exposed and its processes for managing and mitigating those risks, evaluate its capital adequacy relative to its risks, and consider potential impact on its earnings and capital base from current and prospective economic conditions.48 While the elements of supervisory review of capital adequacy would be similar across banking organizations, evaluation of the level of sophistication of an individual banking organization’s capital adequacy process would be commensurate with the banking organization’s size, sophistication, and risk profile, similar to the current supervisory practice. 48 See, for example, SR 09–4, Applying Supervisory Guidance and Regulations on the Payment of Dividends, Stock Redemptions, and Stock Repurchases at Bank Holding Companies (Board). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 G. Tangible Capital Requirement for Federal Savings Associations As part of the OCC’s overall effort to integrate the regulatory requirements for national banks and federal savings associations, the OCC is proposing to include a tangible capital requirement for Federal savings associations in this NPR.49 Under section 5(t)(2)(B) of the Home Owners’ Loan Act (HOLA),50 federal savings associations are required to maintain tangible capital in an amount not less than 1.5 percent of adjusted total assets.51 This statutory requirement is implemented in the capital rules applicable to federal savings associations at 12 CFR 167.9.52 Under that rule, tangible capital is defined differently from other capital measures, such as tangible equity in 12 CFR part 165. After reviewing HOLA, the OCC has determined that a unique regulatory definition of tangible capital is not necessary to satisfy the requirement of the statute. Therefore, the OCC is proposing to define ‘‘tangible capital’’ as the amount of tier 1 capital plus the amount of outstanding perpetual preferred stock (including related surplus) not included in tier 1 capital. This definition mirrors the proposed definition of ‘‘tangible equity’’ for PCA purposes.53 While OCC recognizes that the terms used are not identical (‘‘capital’’ as compared to ‘‘equity’’), the OCC believes that this revised definition of tangible capital would reduce the computational burden on federal savings associations in complying with this statutory mandate, as well as being consistent with both the purposes of HOLA and PCA. Similarly, the FDIC 49 Under Title III of the Dodd-Frank Act, the OCC assumed all functions of the Office of Thrift Supervision (OTS) and the Director of the OTS relating to Federal savings associations. As a result, the OCC has responsibility for the ongoing supervision, examination and regulation of Federal savings associations as of the transfer date of July 21, 2011. The Act also transfers to the OCC the rulemaking authority of the OTS relating to all savings associations, both state and Federal for certain rules. Section 312(b)(2)(B)(i) (to be codified 12 U.S.C. 5412(b)(2)(B)(i)). The FDIC has rulemaking authority for the capital and PCA rules pursuant to section 38 of the FDI Act (12 U.S.C. 1831n) and section 5(t)(1)(A) of the Home Owners’ Loan Act (12 U.S.C.1464(t)(1)(A)). 50 12 U.S.C. 1464(t). 51 ‘‘Tangible capital’’ is defined in section 5(t)(9)(B) to mean ‘‘core capital minus any intangible assets (as intangible assets are defined by the Comptroller of the Currency for national banks.)’’ Section 5(t)(9)(A) defines ‘‘core capital’’ to mean ‘‘core capital as defined by the Comptroller of the Currency for national banks, less any unidentifiable intangible assets [goodwill]’’ unless the OCC prescribes a more stringent definition. 52 54 FR 49649 (Nov. 30, 1989). 53 See 12 CFR 6.2. PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 also is proposing to include a tangible capital requirement for state savings associations as part of this proposal. III. Definition of Capital A. Capital Components and Eligibility Criteria for Regulatory Capital Instruments 1. Common Equity Tier 1 Capital Under this proposal, a banking organization’s common equity tier 1 capital would be the sum of its outstanding common equity tier 1 capital instruments and related surplus (net of treasury stock), retained earnings, accumulated other comprehensive income (AOCI), and common equity tier 1 minority interest subject to the provisions set forth in section 21 of the proposal, minus regulatory adjustments and deductions specified in section 22 of the proposal. a. Criteria To ensure that a banking organization’s common equity tier 1 capital is available to absorb losses as they occur, consistent with Basel III, the agencies propose to require that common equity tier 1 capital instruments issued by a banking organization satisfy the following criteria: (1) The instrument is paid in, issued directly by the banking organization, and represents the most subordinated claim in a receivership, insolvency, liquidation, or similar proceeding of the banking organization. (2) The holder of the instrument is entitled to a claim on the residual assets of the banking organization that is proportional with the holder’s share of the banking organization’s issued capital after all senior claims have been satisfied in a receivership, insolvency, liquidation, or similar proceeding. That is, the holder has an unlimited and variable claim, not a fixed or capped claim. (3) The instrument has no maturity date, can only be redeemed via discretionary repurchases with the prior approval of the agency, and does not contain any term or feature that creates an incentive to redeem. (4) The banking organization did not create at issuance of the instrument through any action or communication an expectation that it will buy back, cancel, or redeem the instrument, and the instrument does not include any term or feature that might give rise to such an expectation. (5) Any cash dividend payments on the instrument are paid out of the banking organization’s net income and retained earnings and are not subject to E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules a limit imposed by the contractual terms governing the instrument. (6) The banking organization has full discretion at all times to refrain from paying any dividends and making any other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of any other restrictions on the banking organization. (7) Dividend payments and any other capital distributions on the instrument may be paid only after all legal and contractual obligations of the banking organization have been satisfied, including payments due on more senior claims. (8) The holders of the instrument bear losses as they occur equally, proportionately, and simultaneously with the holders of all other common stock instruments before any losses are borne by holders of claims on the banking organization with greater priority in a receivership, insolvency, liquidation, or similar proceeding. (9) The paid-in amount is classified as equity under GAAP. (10) The banking organization, or an entity that the banking organization controls, did not purchase or directly or indirectly fund the purchase of the instrument. (11) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and is not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (12) The instrument has been issued in accordance with applicable laws and regulations. In most cases, the agencies, understand that the issuance of these instruments would require the approval of the board of directors of the banking organization or, where applicable, of the banking organization’s shareholders or of other persons duly authorized by the banking organization’s shareholders. (13) The instrument is reported on the banking organization’s regulatory financial statements separately from other capital instruments. These proposed criteria have been designed to ensure that common equity tier 1 capital instruments do not possess features that would cause a banking organization’s condition to further weaken during periods of economic and market stress. For example, the proposed requirement that a banking organization have full discretion on the amount and timing of distributions and dividend payments would enhance the ability of the banking organization to absorb losses during periods of stress. The agencies believe that most existing VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 common stock instruments previously issued by U.S. banking organizations fully satisfy the proposed criteria. The criteria would also apply to instruments issued by banking organizations where ownership of the company is neither freely transferable, nor evidenced by certificates of ownership or stock, such as mutual banking organizations. For these entities, instruments that would be considered common equity tier 1 capital would be those that are fully equivalent to common stock instruments in terms of their subordination and availability to absorb losses, and that do not possess features that could cause the condition of the company to weaken as a going concern during periods of market stress. The agencies believe that stockholders’ voting rights generally are a valuable corporate governance tool that permits parties with an economic interest at stake to take part in the decision-making process through votes on establishing corporate objectives and policy, and in electing the banking organization’s board of directors. For that reason, the agencies continue to expect under the proposal that voting common stockholders’ equity (net of the adjustments to and deductions from common equity tier 1 capital proposed under the rule) should be the dominant element within common equity tier 1 capital. To the extent that a banking organization issues non-voting common shares or common shares with limited voting rights, such shares should be identical to the banking organization’s voting common shares in all respects except for any limitations on voting rights. Question 15: The agencies solicit comments on the eligibility criteria for common equity tier 1 capital instruments. Which, if any, criteria could be problematic given the main characteristics of outstanding common stock instruments and why? Please provide supporting data and analysis. b. Treatment of Unrealized Gains and Losses of Certain Debt Securities in Common Equity Tier 1 Capital Under the agencies’ general risk-based capital rules, unrealized gains and losses on AFS debt securities are not included in regulatory capital, unrealized losses on AFS equity securities are included in tier 1 capital, and unrealized gains on AFS equity securities are partially included in tier 2 capital.54 As proposed, unrealized gains and losses on all AFS securities 54 See 12 CFR part 3, appendix A, section 2(b)(5) (OCC); 12 CFR parts 208 and 225, appendix A, section II.A.2.e (Board); 12 CFR part 325, appendix A, section I.A.2.f (FDIC). PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 52811 would flow through to common equity tier 1 capital. This would include those unrealized gains and losses related to debt securities whose valuations primarily change as a result of fluctuations in a benchmark interest rate, as opposed to changes in credit risk (for example, U.S. Treasuries and U.S. government agency debt obligations). The agencies believe this proposed treatment would better reflect an institution’s actual risk. In particular, while unrealized gains and losses on AFS securities might be temporary in nature and might reverse over a longer time horizon, (especially when they are primarily attributable to changes in a benchmark interest rate), unrealized losses could materially affect a banking organization’s capital position at a particular point in time and associated risks should be reflected in its capital ratios. In addition, the proposed treatment would be consistent with the common market practice of evaluating a firm’s capital strength by measuring its tangible common equity. Accordingly, the agencies propose to require unrealized gains and losses on all AFS securities to flow through to common equity tier 1 capital. However, the agencies recognize that including unrealized gains and losses related to certain debt securities whose valuations primarily change as a result of fluctuations in a benchmark interest rate could introduce substantial volatility in a banking organization’s regulatory capital ratios. The potential increased volatility could significantly change a banking organization’s risk-based capital ratios, in some cases, due primarily to fluctuations in a benchmark interest rate and could result in a change in the banking organization’s PCA category. Likewise, the agencies recognize that such volatility could discourage some banking organizations from holding highly liquid instruments with very low levels of credit risk even where prudent for liquidity risk management. The agencies seek comment on alternatives to the proposed treatment of unrealized gains and losses on AFS securities, including an approach where the unrealized gains and losses related to debt securities whose valuations primarily change as a result of fluctuations in a benchmark interest rate would be excluded from a banking organization’s regulatory capital. In particular, the agencies seek comment on an approach that would not include in regulatory capital unrealized gains and losses on U.S. government and agency debt obligations, U.S. GSE debt obligations and other sovereign debt obligations that would qualify for a zero E:\FR\FM\30AUP2.SGM 30AUP2 52812 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules percent risk weight under the proposed standardized approach. The agencies also seek comment on whether unrealized gains and losses on general obligations issued by states or other political subdivisions of the United States should receive similar treatment, even though unrealized gains and losses on these obligations are more likely to result from changes in credit risk and not primarily from fluctuations in a benchmark interest rate. Question 16: To what extent would a requirement to include unrealized gains and losses on all debt securities whose changes in fair value are recognized in AOCI (1) result in excessive volatility in regulatory capital; (2) impact the levels of liquid assets held by banking organizations; (3) affect the composition of the banking organization’s securities portfolios; and (4) pose challenges for banking organizations’ asset-liability management? Please provide supporting data and analysis. Question 17: What are the pros and cons of an alternative treatment that would allow U.S. banking organizations to exclude from regulatory capital unrealized gains and losses on debt securities whose changes in fair value are predominantly attributable to fluctuations in a benchmark interest rate (for example, U.S. government and agency debt obligations and U.S. GSE debt obligations)? In the context of such an alternative treatment, what other categories of securities should be considered and why? Are there other alternatives that the agencies should consider (for example, retaining the current treatment for unrealized gains and losses on AFS debt and equity securities)? mstockstill on DSK4VPTVN1PROD with PROPOSALS2 2. Additional Tier 1 Capital Consistent with Basel III, under the proposal, additional tier 1 capital would be the sum of: Additional tier 1 capital instruments that satisfy certain criteria, related surplus, and tier 1 minority interest that is not included in a banking organization’s common equity tier 1 capital (subject to the limitations on minority interests set forth in section 21 of the proposal); less applicable regulatory adjustments and deductions. Under the agencies’ existing capital rules, non-cumulative perpetual preferred stock, which currently qualifies as tier 1 capital, generally would continue to qualify as additional tier 1 capital under the proposal. The proposed criteria for qualifying additional tier 1 capital instruments, consistent with Basel III criteria, are: (1) The instrument is issued and paid in. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) The instrument is subordinated to depositors, general creditors, and subordinated debt holders of the banking organization in a receivership, insolvency, liquidation, or similar proceeding. (3) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (4) The instrument has no maturity date and does not contain a dividend step-up or any other term or feature that creates an incentive to redeem. (5) If callable by its terms, the instrument may be called by the banking organization only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called earlier than five years upon the occurrence of a regulatory event (as defined in the agreement governing the instrument) that precludes the instrument from being included in additional tier 1 capital or a tax event. In addition: (i) The banking organization must receive prior approval from the agency to exercise a call option on the instrument. (ii) The banking organization does not create at issuance of the instrument, through any action or communication, an expectation that the call option will be exercised. (iii) Prior to exercising the call option, or immediately thereafter, the banking organization must either: (A) Replace the instrument to be called with an equal amount of instruments that meet the criteria under section 20(b) or (c) of the proposal (replacement can be concurrent with redemption of existing additional tier 1 capital instruments); or (B) Demonstrate to the satisfaction of the agency that following redemption, the banking organization will continue to hold capital commensurate with its risk. (6) Redemption or repurchase of the instrument requires prior approval from the agency. (7) The banking organization has full discretion at all times to cancel dividends or other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of other restrictions on the banking organization except in relation to any capital distributions to holders of common stock. (8) Any capital distributions on the instrument are paid out of the banking PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 organization’s net income and retained earnings. (9) The instrument does not have a credit-sensitive feature, such as a dividend rate that is reset periodically based in whole or in part on the banking organization’s credit quality, but may have a dividend rate that is adjusted periodically independent of the banking organization’s credit quality, in relation to general market interest rates or similar adjustments. (10) The paid-in amount is classified as equity under GAAP. (11) The banking organization, or an entity that the banking organization controls, did not purchase or directly or indirectly fund the purchase of the instrument. (12) The instrument does not have any features that would limit or discourage additional issuance of capital by the banking organization, such as provisions that require the banking organization to compensate holders of the instrument if a new instrument is issued at a lower price during a specified time frame. (13) If the instrument is not issued directly by the banking organization or by a subsidiary of the banking organization that is an operating entity, the only asset of the issuing entity is its investment in the capital of the banking organization, and proceeds must be immediately available without limitation to the banking organization or to the banking organization’s top-tier holding company in a form which meets or exceeds all of the other criteria for additional tier 1 capital instruments. De minimis assets related to the operation of the issuing entity can be disregarded for purposes of this criterion. (14) For an advanced approaches banking organization, the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013 must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the banking organization enters into a receivership, insolvency, liquidation, or similar proceeding. The proposed criteria are designed to ensure that additional tier 1 capital instruments are available to absorb losses on a going concern basis. Trust preferred securities and cumulative perpetual preferred securities, which are eligible for limited inclusion in tier 1 capital under the general risk-based capital rules for bank holding companies, would generally not qualify for inclusion in additional tier 1 E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 capital.55 The agencies believe that instruments that allow for the accumulation of interest payable are not sufficiently loss-absorbent to be included in tier 1 capital. In addition, the exclusion of these instruments from the tier 1 capital of depository institution holding companies is consistent with section 171 of the DoddFrank Act. The agencies recognize that instruments classified as liabilities for accounting purposes could potentially be included in additional tier 1 capital under Basel III. However, as proposed, an instrument classified as a liability under GAAP would not qualify as additional tier 1 capital. The agencies believe that allowing only the inclusion of instruments classified as equity under GAAP in tier 1 capital would help strengthen the loss-absorption capabilities of additional tier 1 capital instruments, further increasing the quality of the capital base of U.S. banking organizations. The agencies are also proposing to allow banking organizations to include in additional tier 1 capital instruments that were (1) issued under the Small Business Jobs Act of 2010 or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008, and (2) included in tier 1 capital under the agencies’ current general risk-based capital rules.56 These instruments would be included in tier 1 capital whether or not they meet the proposed qualifying criteria for common equity tier 1 or additional tier 1 capital instruments. The agencies believe that continued tier 1 capital treatment of these instruments is important to promote financial recovery and stability following the recent financial crisis.57 Question 18: The agencies solicit comments and views on the eligibility criteria for additional tier 1 capital instruments. Is there any specific criterion that could potentially be problematic given the main characteristics of outstanding noncumulative perpetual preferred instruments? If so, please explain. Additional Criterion Regarding Certain Institutional Investors’ Minimum Dividend Payment Requirements Some banking organizations may want or need to limit their capital distributions during a particular payout period, but may opt to pay a penny dividend instead of fully cancelling 55 See 12 CFR part 225, appendix A, section II.A.1. 56 Public Law 110–343, 122 Stat. 3765 (October 3, 2008). 57 See 73 FR 43982 (July 29, 2008); see also 76 FR 35959 (June 21, 2011). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 dividends to common shareholders because certain institutional investors only hold stocks that pay a dividend. The agencies believe that the payment of a penny dividend on common stock should not preclude a banking organization from canceling (or making marginal) dividend payments on additional tier 1 capital instruments. The agencies are therefore considering a revision to criterion (7) of additional tier 1 capital instruments that would require a banking organization to have the ability to cancel or substantially reduce dividend payments on additional tier 1 capital instruments during a period of time when the banking organization is paying a penny dividend to its common shareholders. The agencies believe that such a requirement could substantially increase the loss-absorption capacity of additional tier 1 capital instruments. To maintain the hierarchy of the capital structure under these circumstances, banking organizations would have the ability to pay the holders of additional tier 1 capital instruments the equivalent of what they pay out to common shareholders. Question 19: What is the potential impact of such a requirement on the traditional hierarchy of capital instruments and on the market dynamics and cost of issuing additional tier 1 capital instruments? Question 20: What mechanisms could be used to ensure, contractually, that such a requirement would not result in an additional tier 1 capital instrument being effectively more loss absorbent than common stock? 3. Tier 2 Capital Under the proposal, tier 2 capital would be the sum of: Tier 2 capital instruments that satisfy certain criteria, related surplus, total capital minority interests not included in a banking organization’s tier 1 capital (subject to the limitations and requirements on minority interests set forth in section 21 of the proposal), and limited amounts of the allowance for loan and lease losses (ALLL); less any applicable regulatory adjustments and deductions. Consistent with the general risk-based capital rules, when calculating its standardized total capital ratio, a banking organization would be able to include in tier 2 capital the amount of ALLL that does not exceed 1.25 percent of its total standardized risk-weighted assets not including any amount of the ALLL (a banking organization subject to the market risk capital rules would exclude PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 52813 its standardized market risk-weighted assets from the calculation).58 When calculating its advanced approaches total capital ratio, rather than including in tier 2 capital the amount of ALLL described previously, an advanced approaches banking organization may include the excess of eligible credit reserves over its total expected credit losses (ECL) to the extent that such amount does not exceed 0.6 percent of its total credit risk weighted-assets.59 The proposed criteria for tier 2 capital instruments, consistent with Basel III, are: (1) The instrument is issued and paid in. (2) The instrument is subordinated to depositors and general creditors of the banking organization. (3) The instrument is not secured, not covered by a guarantee of the banking organization or of an affiliate of the banking organization, and not subject to any other arrangement that legally or economically enhances the seniority of the instrument in relation to more senior claims. (4) The instrument has a minimum original maturity of at least five years. At the beginning of each of the last five years of the life of the instrument, the amount that is eligible to be included in tier 2 capital is reduced by 20 percent of the original amount of the instrument (net of redemptions) and is excluded from regulatory capital when remaining maturity is less than one year. In addition, the instrument must not have any terms or features that require, or create significant incentives for, the banking organization to redeem the instrument prior to maturity. (5) The instrument, by its terms, may be called by the banking organization only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called sooner upon the occurrence of an event that would preclude the instrument from being included in tier 2 capital, or a tax event. In addition: (i) The banking organization must receive the prior approval of the agency to exercise a call option on the instrument. 58 A banking organization would deduct the amount of ALLL in excess of the amount permitted to be included in tier 2 capital, as well as allocated transfer risk reserves, from standardized total riskweighted risk assets and use the resulting amount as the denominator of the standardized total capital ratio. 59 An advanced approaches banking organization would deduct any excess eligible credit reserves that are not permitted to be included in tier 2 capital from advanced approaches total riskweighted assets and use the resulting amount as the denominator of the total capital ratio. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52814 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (ii) The banking organization does not create at issuance, through action or communication, an expectation the call option will be exercised. (iii) Prior to exercising the call option, or immediately thereafter, the banking organization must either: (A) Replace any amount called with an equivalent amount of an instrument that meets the criteria for regulatory capital under this section,60 or (B) Demonstrate to the satisfaction of the agency that following redemption, the banking organization would continue to hold an amount of capital that is commensurate with its risk. (6) The holder of the instrument must have no contractual right to accelerate payment of principal or interest on the instrument, except in the event of a receivership, insolvency, liquidation, or similar proceeding of the banking organization. (7) The instrument has no creditsensitive feature, such as a dividend or interest rate that is reset periodically based in whole or in part on the banking organization’s credit standing, but may have a dividend rate that is adjusted periodically independent of the banking organization’s credit standing, in relation to general market interest rates or similar adjustments. (8) The banking organization, or an entity that the banking organization controls, has not purchased and has not directly or indirectly funded the purchase of the instrument. (9) If the instrument is not issued directly by the banking organization or by a subsidiary of the banking organization that is an operating entity, the only asset of the issuing entity is its investment in the capital of the banking organization, and proceeds must be immediately available without limitation to the banking organization or the banking organization’s top-tier holding company in a form that meets or exceeds all the other criteria for tier 2 capital instruments under this section.61 (10) Redemption of the instrument prior to maturity or repurchase requires the prior approval of the agency. (11) For an advanced approaches banking organization, the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013 must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the 60 Replacement of tier 2 capital instruments can be concurrent with redemption of existing tier 2 capital instruments. 61 De minimis assets related to the operation of the issuing entity can be disregarded for purposes of this criterion. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 banking organization enters into a receivership, insolvency, liquidation, or similar proceeding. As explained previously, under the proposed eligibility criteria for additional tier 1 capital instruments, trust preferred securities and cumulative perpetual preferred securities would not qualify for inclusion in additional tier 1 capital. However, many of these instruments could qualify for inclusion in tier 2 capital under the proposed eligibility criteria for tier 2 capital instruments. Given that as proposed, unrealized gains and losses on AFS securities would flow through to common equity tier 1 capital, the agencies propose to eliminate the inclusion of a portion of certain unrealized gains on AFS equity securities in tier 2 capital. As a result of the proposed new minimum common equity tier 1 capital requirement, higher tier 1 capital requirement, and the broader goal of simplifying the definition of tier 2 capital, the agencies are proposing to eliminate some existing limits related to tier 2 capital. Specifically, there would be no limit on the amount of tier 2 capital that could be included in a banking organization’s total capital. Likewise, existing limitations on term subordinated debt, limited-life preferred stock and trust preferred securities within tier 2 would also be eliminated.62 Question 21: The agencies solicit comments on the eligibility criteria for tier 2 capital instruments. Is there any specific criterion that could potentially be problematic? If so, please explain. For the reasons explained previously with respect to tier 1 capital instruments, the agencies propose to allow an instrument that qualified as tier 2 capital under the general riskbased capital rules and that was issued under the Small Business Jobs Act of 2010 or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008, to continue to be includable in tier 2 capital regardless of whether it meets all of the proposed qualifying criteria. 4. Capital Instruments of Mutual Banking Organizations Most of the capital of mutual banking organizations is generally in the form of retained earnings (including retained earnings surplus accounts) and the agencies believe that mutual banking organizations generally should be able 62 See 12 CFR part 3, Appendix A, section 2(b)(3); 12 CFR parts 208 and 225, appendix A, section II.A.2; 12 CFR part 325, appendix A, section I.A.2. PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 to meet the proposed regulatory capital requirements. Consistent with Basel III, the proposed criteria for regulatory capital instruments would potentially permit the inclusion in regulatory capital of certain capital instruments issued by mutual banking organizations (for example, non-withdrawable accounts, pledged deposits, or mutual capital certificates), provided that the instruments meet all the proposed eligibility criteria of the relevant capital component. However, some previously-issued mutual capital instruments that were includable in the regulatory capital of mutual banking organizations may not meet all of the relevant criteria for capital instruments under the proposal. For example, instruments that are liabilities or that are cumulative would not meet the criteria for additional tier 1 capital instruments. However, these instruments would be subject to the proposed transition provisions and excluded from capital over time. Question 21: What instruments or accounts currently included in the regulatory capital of mutual banking organizations would not meet the proposed criteria for capital instruments? Question 23: What impact, if any, would the exclusion of such instruments or accounts have on the regulatory capital ratios of mutual banking organizations? Please provide data supporting your answer. Question 24: Would such instruments be unable to meet any of the proposed criteria? Could the terms of such instruments be modified to align with the proposed criteria for capital instruments? Please explain. Question 25: Would the proposed criteria for capital instruments affect the ability of mutual banking organizations to increase regulatory capital levels going forward? 5. Grandfathering of Certain Capital Instruments Under Basel III, capital investments in a banking organization made before September 12, 2010 by the government where the banking organization is domiciled are grandfathered until January 1, 2018. However, as described above with respect to qualifying criteria for tier 1 and tier 2 instruments, the agencies are proposing a different grandfathering treatment for the capital investments by the U.S. government, consistent with the Dodd-Frank Act.63 As discussed above, as proposed, capital investments by the U.S. 63 See E:\FR\FM\30AUP2.SGM 12 U.S.C. 5371(b)(5)(A). 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules government included in the tier 1 and tier 2 capital of banking organizations issued under the Small Business Jobs Act of 2010 or, prior to October 4, 2010,64 under the Emergency Economic Stabilization Act 65 (for example, tier 1 instruments issued under the TARP program) would be grandfathered permanently. Transitional arrangements for regulatory capital instruments that do not comply with the Basel III criteria and transitional arrangements for debt or equity instruments issued by depository institution holding companies that do not qualify as regulatory capital under the general risk-based capital rules are discussed under section V of this preamble. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 6. Agency Approval of Capital Elements The agencies expect that most existing common stock instruments that banking organizations currently include in tier 1 capital would meet the proposed eligibility criteria for common equity tier 1 capital instruments. In addition, the agencies expect that most existing non-cumulative perpetual preferred stock instruments that banking organizations currently include in tier 1 capital and most existing subordinated debt instruments they include in tier 2 capital would meet the proposed eligibility criteria for additional tier 1 and tier 2 capital instruments, respectively. However, the agencies recognize that over time, capital instruments that are equivalent in quality and loss-absorption capacity to existing instruments may be created to satisfy different market needs and are proposing to consider the eligibility of such instruments on a case-by-case basis. Accordingly, the agencies propose to require a banking organization request approval from its primary federal supervisor before it may include a capital element in regulatory capital, unless: (i) Such capital element is currently included in regulatory capital under the agencies’ general risk-based capital and leverage rules and the underlying instrument complies with the applicable proposed eligibility criteria for regulatory capital instruments; or (ii) The capital element is equivalent in terms of capital quality and lossabsorption capabilities to an element described in a previous decision made publicly available by the banking organization’s primary federal supervisor. 64 Public 65 Public Law 111–240 (September 27, 2010). Law 110–343, 122 Stat. 3765 (October 3, 2008). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 The agency that is considering a request to include a new capital element in regulatory capital would consult with the other agencies when determining whether the element should be included in common equity tier 1, additional tier 1, or tier 2 capital. Once an agency determines that a capital element may be included in a banking organization’s common equity tier 1, additional tier 1, or tier 2 capital, the agency would make its decision publicly available, including a brief description of the element and the rationale for the conclusion. 7. Addressing the Point of Non-Viability Requirements Under Basel III During the recent financial crisis, in the United States and other countries, governments lent to, and made capital investments in, distressed banking organizations. These investments helped to stabilize the recipient banking organizations and the financial sector as a whole. However, because of the investments, the recipient banking organizations’ existing tier 2 capital instruments, and (in some cases) tier 1 capital instruments, did not absorb the banking organizations’ credit losses consistent with the purpose of regulatory capital. At the same time, taxpayers became exposed to those losses. On January 13, 2011, the BCBS issued international standards for all additional tier 1 and tier 2 capital instruments issued by internationally active banking organizations, to ensure that such regulatory capital instruments fully absorb losses before taxpayers are exposed to such losses (Basel nonviability standard). Under the Basel non-viability standard, all non-common stock regulatory capital instruments issued by an internationally active banking organization must include terms that subject the instruments to write-off or conversion to common equity at the point that either (1) the write-off or conversion of those instruments occurs or (2) a government (or public sector) injection of capital would be necessary to keep the banking organization solvent. Alternatively, if the governing jurisdiction of the banking organization has established laws that require such tier 1 and tier 2 capital instruments to be written off or otherwise fully absorb losses before tax payers are exposed to loss, the standard is already met. If the governing jurisdiction has such laws in place, the Basel non-viability standard states that documentation for such instruments should disclose that information to investors and market participants, and should clarify that the holders of such PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 52815 instruments would fully absorb losses before taxpayers are exposed to loss.66 The agencies believe that U.S. law generally is consistent with the Basel non-viability standard. The resolution regime established in Title 2, section 210 of the Dodd-Frank Act provides the FDIC with the authority necessary to place failing financial companies that pose a significant risk to the financial stability of the United States into receivership.67 The Dodd-Frank Act provides that this authority shall be exercised in the manner that minimizes systemic risk and moral hazard, so that (1) Creditors and shareholders will bear the losses of the financial company; (2) management responsible for the condition of the financial company will not be retained; and (3) the FDIC and other appropriate agencies will take steps necessary and appropriate to ensure that all parties, including holders of capital instruments, management, directors, and third parties having responsibility for the condition of the financial company, bear losses consistent with their respective ownership or responsibility.68 Section 11 of the Federal Deposit Insurance Act has similar provisions for the resolution of depository institutions.69 Additionally, under U.S. bankruptcy law, regulatory capital instruments issued by a company in bankruptcy would absorb losses before more senior unsecured creditors. Furthermore, consistent with the Basel non-viability standard, under the proposal, additional tier 1 and tier 2 capital instruments issued by advanced approaches banking organizations after the proposed requirements for capital instruments are finalized would be required to include a disclosure that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the banking organization enters into receivership, insolvency, liquidation, or similar proceeding. 8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries of a Banking Organization Investments by third parties in a consolidated subsidiary of a banking organization may significantly improve the overall capital adequacy of that subsidiary. However, as became apparent during the financial crisis, while capital issued by consolidated subsidiaries and not owned by the 66 See ‘‘Final Elements of the Reforms to Raise the Quality of Regulatory Capital’’ (January 2011), available at: http://www.bis.org/press/p110113.pdf. 67 See 12 U.S.C. 5384. 68 12 U.S.C. 5384. 69 12 U.S.C. 1821. E:\FR\FM\30AUP2.SGM 30AUP2 52816 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules parent banking organization (minority interest) is available to absorb losses at the subsidiary level, that capital does not always absorb losses at the consolidated level. Therefore, inclusion of minority interests in the regulatory capital at the consolidated level should be limited to prevent highly capitalized subsidiaries from overstating the amount of capital available to absorb losses at the consolidated level. Under the proposal, a banking organization would be allowed to include in its consolidated capital limited amounts of minority interests, if certain requirements are met. Minority interest would be classified as a common equity tier 1, tier 1, or total capital minority interest depending on the underlying capital instrument and on the type of subsidiary issuing such instrument. Any instrument issued by the consolidated subsidiary to third parties would need to meet the relevant eligibility criteria under section 20 of the proposal in order for the resulting minority interest to be included in the banking organization’s common equity tier 1, additional tier 1 or tier 2 capital elements, as appropriate. In addition, common equity tier 1 minority interest would need to be issued by a depository institution or foreign bank that is a consolidated subsidiary of a banking organization. The limits on the amount of minority interest that may be included in the consolidated capital of a banking organization would be based on the amount of capital held by the consolidated subsidiary, relative to the amount of capital the subsidiary would have to hold in order to avoid any restrictions on capital distributions and discretionary bonus payments under the capital conservation buffer framework, as provided in section 11 of the proposal. For example, if a subsidiary needs to maintain a common equity tier 1 capital ratio of more than 7 percent to avoid limitations on capital distributions and discretionary bonus payments, and the subsidiary’s common equity tier 1 capital ratio is 8 percent, the subsidiary would be considered to have ‘‘surplus’’ common equity tier 1 capital and, at the consolidated level, the banking organization would not be able to include the portion of such surplus common equity tier 1 capital held by third party investors. The steps for determining the amount of minority interest includable in a banking organization’s regulatory capital are described in this section below and are illustrated in a numerical example that follows. For example, the amount of common equity tier 1 minority interest includable in the common equity tier 1 capital of a banking organization under the proposal would be: the common equity tier 1 minority interest of the subsidiary minus the ratio of the subsidiary’s common equity tier 1 capital owned by third parties to the total common equity tier 1 capital of the subsidiary, multiplied by the difference between the common equity tier 1 capital of the subsidiary and the lower of: (1) The amount of common equity tier 1 capital the subsidiary must hold to avoid restrictions on capital distributions and discretionary bonus payments, or (2) the total risk-weighted assets of the banking organization that relate to the subsidiary, multiplied by the common equity tier 1 capital ratio needed by the banking organization subsidiary to avoid restrictions on capital distributions and discretionary bonus payments. If the subsidiary were not subject to the same minimum regulatory capital requirements or capital conservation buffer framework of the banking organization, the banking organization would need to assume, for purposes of the calculation described above, that the subsidiary is subject to the minimum capital requirements and to the capital conservation buffer framework of the banking organization. To determine the amount of tier 1 minority interest includable in the tier 1 capital of the banking organization and the total capital minority interest includable in the total capital of the banking organization, a banking organization would follow the same methodology as the one outlined previously for common equity tier 1 minority interest. Section 21 of the proposal sets forth the precise calculations. The amount of tier 1 minority interest that can be included in the additional tier 1 capital of the banking organization is equivalent to the banking organization’s tier 1 minority interest, subject to the limitations outlined above, less any tier 1 minority interest that is included in the banking organization’s common equity tier 1 capital. Likewise, the amount of total capital minority interest that can be included in the tier 2 capital of the banking organization is equivalent to its total capital minority interest, subject to the limitations outlined previously, less any tier 1 minority interest that is included in the banking organization’s tier 1 capital. As proposed, minority interest related to qualifying common or noncumulative perpetual preferred stock directly issued by a consolidated U.S. depository institution or foreign bank subsidiary, which are eligible for inclusion in tier 1 capital under the general risk-based capital rules without limitation, would generally qualify for inclusion in common equity tier 1 and additional tier 1 capital, respectively, subject to the appropriate limits under section 21 of the proposed rule. Likewise, under the proposed rule, minority interest related to qualifying cumulative perpetual preferred stock directly issued by a consolidated U.S. depository institution or foreign bank subsidiary, which are eligible for limited inclusion in tier 1 capital under the general risk-based capital rules, would generally not qualify for inclusion in additional tier 1 capital under the proposal. TABLE 8— EXAMPLE OF THE CALCULATION OF THE PROPOSED LIMITS ON MINORITY INTEREST mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (a) Capital issued by subsidiary ($) (b) Capital owned by third parties (percent) (c) Amount of minority interest ($) ((a)*(b)) (d) Minimum capital requirement plus capital conservation buffer (percent) (e) Minimum capital requirement plus capital conservation buffer ($) ((RWAs*(d)) (f) Surplus capital of subsidiary ($) ((a)–(e)) (g) Surplus minority interest ($) ((f)*(b)) (h) Minority interest included at banking organization level ($)((c)–(g)) Common equity tier 1 capital .................................. 80 30 24 7 70 10 3 21 Additional tier 1 capital ...... 30 50 15 ........................ ........................ ........................ ........................ 9.1 Tier 1 capital ..................... Tier 2 capital ..................... 110 20 35 75 39 15 8.5 ........................ 85 ........................ 25 ........................ 8.9 ........................ 30.1 13.5 Total capital ................ 130 42 54 10.5 105 25 10.4 43.6 VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules For purposes of the example in table 8, assume a consolidated depository institution subsidiary has common equity tier 1, additional tier 1 and tier 2 capital of $80, $30, and $20, respectively, and third parties own 30 percent of the common equity tier 1 capital ($24), 50 percent of the additional tier 1 capital ($15) and 75 percent of the tier 2 capital ($15). If the subsidiary has $1000 of total riskweighted assets, the sum of its minimum common equity tier 1 capital requirement (4.5 percent) plus the capital conservation buffer (2.5 percent) (assuming a countercyclical capital buffer amount of zero) is 7 percent ($70), the sum of its minimum tier 1 capital requirement (6.0 percent) plus the capital conservation buffer (2.5 percent) is 8.5 percent ($85), and the sum of its minimum total capital requirement (8 percent) plus the capital conservation buffer (2.5 percent) is 10.5 percent ($105). In this example, the surplus common equity tier 1 capital of the subsidiary equals $10 ($80 ¥ $70), the amount of the surplus common equity tier 1 minority interest is equal to $3 ($10*$24/$80), and therefore the amount of common equity tier 1 minority interest that may be included at the consolidated level is equal to $21 ($24 ¥ $3). The surplus tier 1 capital of the subsidiary is equal to $25 ($110 ¥ $85), the amount of the surplus tier 1 minority interest is equal to $8.9 ($25*$39/$110), and therefore the amount of tier 1 minority interest that may be included in the banking organization is equal to $30.1 ($39 ¥ $8.9). Since the banking organization already includes $21 of common equity tier 1 minority interest in its common equity tier 1 capital, it would include $9.1 ($30.1 ¥ $21) of such tier 1 minority interest in its additional tier 1 capital. The surplus total capital of the subsidiary is equal to $25 ($130 ¥ $105), the amount of the surplus total capital minority interest is equal to $10.4 ($25*$54/$130), and therefore the amount of total capital minority interest that may be included in the banking organization is equal to $43.6 ($54 ¥ $10.4). Since the banking organization already includes $30.1 of tier 1 minority interest in its tier 1 capital, it would include $13.5 ($43.6 ¥ $30.1) of such total capital minority interest in its tier 2 capital. Question 26: The agencies solicit comments on the proposed qualitative restrictions and quantitative limits for including minority interest in regulatory capital. What is the potential impact of VerDate Mar<15>2010 19:45 Aug 29, 2012 Jkt 226001 these restrictions and limitations on the issuance of certain types of capital instruments (for example, subordinated debt) by depository institution subsidiaries of banking organizations? Please provide data to support your answer. Real Estate Investment Trust Preferred Capital A Real Estate Investment Trust (REIT) is a company that is required to invest in real estate and real estate-related assets and make certain distributions in order to maintain a tax-advantaged status. Some banking organizations have consolidated subsidiaries that are REITs, and such REITs may have issued capital instruments to be included in the regulatory capital of the consolidated banking organization as minority interest. Under the agencies’ general risk-based capital rules, preferred shares issued by a REIT subsidiary generally may be included in a banking organization’s tier 1 capital as minority interest if the preferred shares meet the eligibility requirements for tier 1 capital.70 The agencies have interpreted this requirement to entail that the REIT preferred shares must be exchangeable automatically into noncumulative perpetual preferred stock of the banking organization under certain circumstances. Specifically the primary federal supervisor may direct the banking organization in writing to convert the REIT preferred shares into noncumulative perpetual preferred stock of the banking organization because the banking organization: (1) Became undercapitalized under the PCA regulations; 71 (2) was placed into conservatorship or receivership; or (3) was expected to become undercapitalized in the near term.72 Under the proposed rule, the limitations described previously on the inclusion of minority interest in regulatory capital would apply to capital instruments issued by consolidated REIT subsidiaries. Specifically, REIT preferred shares issued by a REIT subsidiary that meets the proposed definition of an operating 70 12 CFR part 325, subpart B (FDIC); 12 CFR part 3, Appendix A, Sec. 2(a)(3) (OCC). 71 12 CFR part 3, appendix A, section 2(a)(3), 12 CFR 167.5(a)(1)(iii) (OCC); 12 CFR part 208, subpart D (Board); 12 CFR part 325, subpart B, 12 CFR part 390, subpart Y (FDIC). 72 See OCC Corporate Decision No. 97–109 (December 1997) available at http://www.occ.gov/ static/interpretations-and-precedents/dec97/cd97– 109.pdf and the Comptroller’s licensing manual, Capital and Dividends available at http:// www.occ.gov/static/publications/capital3.pdf; 12 CFR parts 208 and 225, appendix A (Board); 12 CFR part 325, subpart B (FDIC). PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 52817 entity would qualify for inclusion in the regulatory capital of a banking organization subject to the limitations outlined in section 21 of the proposed rule only if the REIT preferred shares meet the criteria for additional tier 1 or tier 2 capital instruments outlined in section 20 of the proposed rule. Under the proposal, an operating entity is a subsidiary of the banking organization set up to conduct business with clients with the intention of earning a profit in its own right. Because a REIT must distribute 90 percent of its earnings in order to maintain its beneficial tax status, a banking organization might be reluctant to cancel dividends on the REIT preferred shares. However, for a capital instrument to qualify as additional tier 1 capital, which must be available to absorb losses, the issuer must have the ability to cancel dividends. In cases where a REIT could maintain its tax status by declaring a consent dividend and has the ability to do so, the agencies generally would consider REIT preferred shares to satisfy criterion (7) of the proposed eligibility criteria for additional tier 1 capital instruments under the proposed rule.73 The agencies do not expect preferred stock issued by a REIT that does not have the ability to declare a consent dividend to qualify as tier 1 minority interest; however, such instrument could qualify as total capital minority interest if it meets all of the relevant tier 2 eligibility criteria under the proposed rule. Question 27: The agencies are seeking comment on the proposed treatment of REIT preferred capital. Specifically, how would the proposed minority interest limitations and interpretation of criterion (7) of the proposed eligibility criteria for additional tier 1 capital instruments affect the future issuance of REIT preferred capital instruments? B. Regulatory Adjustments and Deductions 1. Regulatory Deductions From Common Equity Tier 1 Capital The proposed rule would require a banking organization to make the deductions described in this section from the sum of its common equity tier 1 capital elements. Amounts deducted would be excluded from the banking organization’s risk-weighted assets and leverage exposure. 73 A consent dividend is a dividend that is not actually paid to the shareholders, but is kept as part of a company’s retained earnings, yet the shareholders have consented to treat the dividend as if paid in cash and include it in gross income for tax purposes. E:\FR\FM\30AUP2.SGM 30AUP2 52818 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Goodwill and Other Intangibles (Other Than MSAs) Goodwill and other intangible assets have long been either fully or partially excluded from regulatory capital in the U.S. because of the high level of uncertainty regarding the ability of the banking organization to realize value from these assets, especially under adverse financial conditions.74 Likewise, U.S. federal banking statutes generally prohibit inclusion of goodwill in the regulatory capital of insured depository institutions.75 Accordingly, under the proposal, goodwill and other intangible assets other than MSAs (for example, purchased credit card relationships (PCCRs) and non-mortgage servicing assets), net of associated deferred tax liabilities (DTLs), would be deducted from common equity tier 1 capital elements. Goodwill for purposes of this deduction would include any goodwill embedded in the valuation of significant investments in the capital of an unconsolidated financial institution in the form of common stock. Such deduction of embedded goodwill would apply to investments accounted for under the equity method. Under GAAP, if there is a difference between the initial cost basis of the investment and the amount of underlying equity in the net assets of the investee, the resulting difference should be accounted for as if the investee were a consolidated subsidiary (which may include imputed goodwill). Consistent with Basel III, these deductions would be taken from common equity tier 1 capital. Although MSAs are also intangibles, they are subject to a different treatment under Basel III and the proposal, as explained in this section. DTAs As proposed, consistent with Basel III, a banking organization would deduct DTAs that arise from operating loss and tax credit carryforwards net of any related valuation allowances (and net of DTLs calculated as outlined in section 22(e) of the proposal) from common equity tier 1 capital elements because of the high degree of uncertainty regarding the ability of the banking organization to realize value from such DTAs. DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks net of any related valuation allowances and net of DTLs calculated as outlined in section 22(e) of the proposal (for example, DTAs 74 See 54 FR 4186, 4196 (1989) (Board); 54 FR 4168, 4175 (1989) (OCC); 54 FR 11509 (FDIC). 75 12 U.S.C. 1828(n). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 resulting from the banking organization’s ALLL), would be subject to strict limitations described in section 22(d) of the proposal because of concerns regarding a banking organization’s ability to realize such DTAs. DTAs arising from temporary differences that the banking organization could realize through net operating loss carrybacks are not subject to deduction, and instead receive a 100 percent risk weight. For a banking organization that is a member of a consolidated group for tax purposes, the amount of DTAs that could be realized through net operating loss carrybacks may not exceed the amount that the banking organization could reasonably expect to have refunded by its parent holding company. Gain-on-Sale Associated With a Securitization Exposure A banking organization would deduct from common equity tier 1 capital elements any after-tax gain-on-sale associated with a securitization exposure. Under this proposal, gain-onsale means an increase in the equity capital of a banking organization resulting from the consummation or issuance of a securitization (other than an increase in equity capital resulting from the banking organization’s receipt of cash in connection with the securitization). Defined Benefit Pension Fund Assets As proposed, defined benefit pension fund liabilities included on the balance sheet of a banking organization would be fully recognized in common equity tier 1 capital (that is, common equity tier 1 capital cannot be increased via the de-recognition of these liabilities). However, under the proposal, defined benefit pension fund assets (defined as excess assets of the pension fund that are reported on the banking organization’s balance sheet due to its overfunded status), net of any associated DTLs, would be deducted in the calculation of common equity tier 1 capital given the high level of uncertainty regarding the ability of the banking organization to realize value from such assets. Consistent with Basel III, under the proposal, with supervisory approval, a banking organization would not be required to deduct a defined benefit fund assets to which the banking organization has unrestricted and unfettered access. In this case, the banking organization would assign to such assets the risk weight they would receive if they were directly owned by the banking organization. Under the PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 proposal, unrestricted and unfettered access would mean that a banking organization is not required to request and receive specific approval from pension beneficiaries each time it would access excess funds in the plan. The FDIC has unfettered access to the excess assets of an insured depository institution’s pension plan in the event of receivership. Therefore, the agencies have determined that generally an insured depository institution would not be required to deduct any assets associated with a defined benefit pension plan from common equity tier 1 capital. Similarly, a holding company would not need to deduct any assets associated with a subsidiary insured depository institution’s defined benefit pension plan from capital. Activities by Savings Association Subsidiaries That Are Impermissible for National Banks As part of the OCC’s overall effort to integrate the regulatory requirements for national banks and federal savings associations, the OCC is proposing to incorporate in the proposal a deduction requirement specifically applicable to federal savings association subsidiaries that engage in activities impermissible for national banks. Similarly, the FDIC is proposing to incorporate in the proposal a deduction requirement specifically applicable to state savings association subsidiaries that engage in activities impermissible for national banks. Section 5(t)(5) 76 of HOLA requires a separate capital calculation for Federal savings associations for ‘‘investments in and extensions of credit to any subsidiary engaged in activities not permissible for a national bank.’’ This statutory provision is implemented through the definition of ‘‘includable subsidiary’’ as a deduction from the core capital of the federal savings association for those subsidiaries that are not ‘‘includable subsidiaries.’’ 77 Specifically, where a subsidiary of a federal savings association engages in activities that are impermissible for national banks, the rules require the deconsolidation and deduction of the federal savings association’s investment in the subsidiary from the assets and regulatory capital of the Federal savings association. If the activities of the federal savings association subsidiary are permissible for a national bank, then consistent with GAAP, the balance sheet of the subsidiary generally is consolidated with the balance sheet of the federal savings association. 76 12 U.S.C. 1464(t)(5). 12 CFR 167.1; 12 CFR 167.5(a)(2)(iv). 77 See E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules The OCC is proposing to carry over the general regulatory treatment of includable subsidiaries, with some technical modifications, by adding a new paragraph to section 22(a) of the proposal. The OCC notes that such treatment is consistent with how a national bank deducts its equity investments in financial subsidiaries. Under this proposal, investments (both debt and equity) by a federal savings association in a subsidiary that is not an ‘‘includable subsidiary’’ are required to be deducted (with certain exceptions) from the common equity tier 1 capital of the federal savings association. Among other things, includable subsidiary is defined as a subsidiary of a federal savings association that engages solely in activities not impermissible for a national bank. Aside from a few technical modifications, this proposal is intended to carry over the current general regulatory treatment of includable subsidiaries for federal savings associations into the proposal. Question 28: The OCC and FDIC request comments on all aspects of this proposal to incorporate the current deduction requirement for federal and state, savings association subsidiaries that engage in activities impermissible for national banks. In particular, the OCC and FDIC are interested in whether this statutorily required deduction can be revised to reduce burden on federal and state savings associations. 2. Regulatory Adjustments to Common Equity Tier 1 Capital mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Unrealized Gains and Losses on Certain Cash Flow Hedges Consistent with Basel III, the agencies are proposing that unrealized gains and losses on cash flow hedges that relate to the hedging of items that are not recognized at fair value on the balance sheet (including projected cash flows) be excluded from regulatory capital. That is, if the banking organization has an unrealized-net-cash-flow-hedge gain, it would deduct it from common equity tier 1 capital, and if it has an unrealizednet-cash-flow-hedge loss it would add it back to common equity tier 1 capital, net of applicable tax effects. That is, if the amount of the cash flow hedge is positive, a banking organization would deduct such amount from common equity tier 1 capital elements, and if the amount is negative, a banking organization would add such amount to common equity tier 1 capital elements. This proposed regulatory adjustment would reduce the artificial volatility that can arise in a situation where the unrealized gain or loss of the cash flow hedge is included in regulatory capital VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 but any change in the fair value of the hedged item is not. However, the agencies recognize that in a regulatory capital framework where unrealized gains and losses on AFS securities flow through to common equity tier 1 capital, the exclusion of unrealized cash flow hedge gains and losses might have an adverse effect on banking organizations that manage their interest rate risk by using cash flow hedges to hedge items that are not recognized on the balance sheet at fair value (for example, floating rate liabilities) and that are used to fund the banking organizations’ AFS investment portfolios. In this scenario, a banking organization’s regulatory capital could be adversely affected by fluctuations in a benchmark interest rate even if the banking organization’s interest rate risk is effectively hedged because its unrealized gains and losses on the AFS securities would flow through to regulatory capital while its unrealized gains and losses on the cash flow hedges would not, resulting in a regulatory capital asymmetry. Question 29: How would a requirement to exclude unrealized net gains and losses on cash flow hedges related to the hedging of items that are not measured at fair value in the balance sheet (in the context of a framework where the unrealized gains and losses on AFS debt securities would flow through to regulatory capital) change the way banking organizations currently hedge against interest rate risk? Please explain and provide supporting data and analysis. Question 30: Could this adjustment potentially introduce excessive volatility in regulatory capital predominantly as a result of fluctuations in a benchmark interest rate for institutions that are effectively hedged against interest rate risk? Please explain and provide supporting data and analysis. Question 31: What are the pros and cons of an alternative treatment where floating rate liabilities are deemed to be fair valued for purposes of the proposed adjustment for unrealized gains and losses on cash flow hedges? Please explain and provide supporting data and analysis. Changes in the Banking Organization’s Creditworthiness The agencies believe that it would be inappropriate to allow banking organizations to increase their capital ratios as a result of a deterioration in their own creditworthiness, and are therefore proposing, consistent with Basel III, that banking organizations not be allowed to include in regulatory capital any change in the fair value of PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 52819 a liability that is due to changes in their own creditworthiness. Therefore, a banking organization would be required to deduct any unrealized gain from and add back any unrealized loss to common equity tier 1 capital elements due to changes in a banking organization’s own creditworthiness. An advanced approaches banking organization would deduct from common equity tier 1 capital elements any unrealized gains associated with derivative liabilities resulting from the widening of a banking organization’s credit spread premium over the risk free rate. 3. Regulatory Deductions Related to Investments in Capital Instruments Deduction of Investments in own Regulatory Capital Instruments To avoid the double-counting of regulatory capital, under the proposal a banking organization would be required to deduct the amount of its investments in its own capital instruments, whether held directly or indirectly, to the extent such investments are not already derecognized from regulatory capital. Specifically, a banking organization would deduct its investment in its own common equity tier 1, own additional tier 1 and own tier 2 capital instruments from the sum of its common equity tier 1, additional tier 1, and tier 2 capital elements, respectively. In addition, any common equity tier 1, additional tier 1 or tier 2 capital instrument issued by a banking organization which the banking organization could be contractually obliged to purchase would also be deducted from its common equity tier 1, additional tier 1 or tier 2 capital elements, respectively. If a banking organization already deducts its investment in its own shares (for example, treasury stock) from its common equity tier 1 capital elements, it does not need to make such deduction twice. A banking organization would be required to look through its holdings of index securities to deduct investments in its own capital instruments. Gross long positions in investments in its own regulatory capital instruments resulting from holdings of index securities may be netted against short positions in the same underlying index. Short positions in indexes that are hedging long cash or synthetic positions may be decomposed to recognize the hedge. More specifically, the portion of the index that is composed of the same underlying exposure that is being hedged may be used to offset the long position only if both the exposure being hedged and the short position in the index are positions E:\FR\FM\30AUP2.SGM 30AUP2 52820 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 subject to the market risk rule, the positions are fair valued on the banking organization’s balance sheet, and the hedge is deemed effective by the banking organization’s internal control processes, which have been assessed by the primary supervisor of the banking organization. If the banking organization finds it operationally burdensome to estimate the exposure amount as a result of an index holding, it may, with prior approval from the primary federal supervisor, use a conservative estimate. In all other cases, gross long positions would be allowed to be deducted net of short positions in the same underlying instrument only if the short positions involve no counterparty risk (for example, the position is fully collateralized or the counterparty is a qualifying central counterparty). Definition of Financial Institution Consistent with Basel III, the proposal would require banking organizations to deduct investments in the capital of unconsolidated financial institutions where those investments exceed certain thresholds, as described further below. These deduction requirements are one of the measures included in Basel III designed to address systemic risk arising out of interconnectedness between banking organizations. Under the proposal, ‘‘financial institution’’ would mean bank holding companies, savings and loan holding companies, non-bank financial institutions supervised by the Board under Title I of the Dodd-Frank Act, depository institutions, foreign banks, credit unions, insurance companies, securities firms, commodity pools (as defined in the Commodity Exchange Act), covered funds under section 619 of the Dodd-Frank Act (and regulations issued thereunder), benefit plans, and other companies predominantly engaged in certain financial activities, as set forth in the proposal. See the definition of ‘‘financial institution’’ in section 2 of the proposed rules. The proposed definition is designed to include entities whose primary business is financial activities and therefore could contribute to risk in the financial system, including entities whose primary business is banking, insurance, investing, and trading, or a combination thereof. The proposed definition is also designed to align with similar definitions and concepts included in other rulemakings, including those funds that are covered by the restrictions of section 13 of the Bank Holding Company Act. The proposed definition also includes a standard for ‘‘predominantly engaged’’ in financial activities similar to the VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 standard from the Board’s proposed rule to define ‘‘predominantly engaged in financial activities’’ for purposes of Title I of the Dodd-Frank Act.78 Likewise, the proposed definition seeks to exclude firms that are predominantly engaged in activities that have a financial nature but are focused on community development, public welfare projects, and similar objectives. Question 32: The agencies seek comment on the proposed definition of financial institution. The agencies have sought to achieve consistency in the definition of financial institution with similar definitions proposed in other proposed regulations. The agencies seek comment on the appropriateness of this standard for purposes of the proposal and whether a different threshold, such as greater than 50 percent, would be more appropriate. The agencies ask that commenters provide detailed explanations in their responses. The Corresponding Deduction Approach The proposal incorporates the Basel III corresponding deduction approach for the deductions from regulatory capital related to reciprocal cross holdings, non-significant investments in the capital of unconsolidated financial institutions, and non-common stock significant investments in the capital of unconsolidated financial institutions. Under this approach a banking organization would be required to make any such deductions from the same component of capital for which the underlying instrument would qualify if it were issued by the banking organization itself. If a banking organization does not have a sufficient amount of a specific regulatory capital component to effect the deduction, the shortfall would be deducted from the next higher (that is, more subordinated) regulatory capital component. For example, if a banking organization does not have enough additional tier 1 capital to satisfy the required deduction from additional tier 1 capital, the shortfall would be deducted from common equity tier 1 capital. If the banking organization invests in an instrument issued by a non-regulated financial institution, the banking organization would treat the instrument as common equity tier 1 capital if the instrument is common stock (or if it is otherwise the most subordinated form of capital of the financial institution) and as additional tier 1 capital if the instrument is subordinated to all creditors of the financial institution 78 76 FR 7731 (February 11, 2011) and 77 FR 21494 (April 10, 2012). PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 except common shareholders. If the investment is in the form of an instrument issued by a regulated financial institution and the instrument does not meet the criteria for any of the regulatory capital components for banking organizations, the banking organization would treat the instrument as (1) Common equity tier 1 capital if the instrument is common stock included in GAAP equity or represents the most subordinated claim in liquidation of the financial institution; (2) additional tier 1 capital if the instrument is GAAP equity and is subordinated to all creditors of the financial institution and is only senior in liquidation to common shareholders; and (3) tier 2 capital if the instrument is not GAAP equity but it is considered regulatory capital by the primary regulator of the financial institution. Deduction of Reciprocal Cross Holdings in the Capital Instruments of Financial Institutions A reciprocal cross holding results from a formal or informal arrangement between two financial institutions to swap, exchange, or otherwise intend to hold each other’s capital instruments. The use of reciprocal cross holdings of capital instruments to artificially inflate the capital positions of each of the banking organizations involved would undermine the purpose of regulatory capital, potentially affecting the stability of such banking organizations as well as the financial system. Under the agencies’ general risk-based capital rules, reciprocal holdings of capital instruments of banking organizations are deducted from regulatory capital. Consistent with Basel III, the proposal would require a banking organization to deduct reciprocal holdings of capital instruments of other financial institutions, where these investments are made with the intention of artificially inflating the capital positions of the banking organizations involved. The deductions would be made by using the corresponding deduction approach. Determining the Exposure Amount for Investments in the Capital of Unconsolidated Financial Institutions Under the proposal, the exposure amount of an investment in the capital of an unconsolidated financial institution would refer to a net long position in an instrument that is recognized as capital for regulatory purposes by the primary supervisor of an unconsolidated regulated financial institution or in an instrument that is part of the GAAP equity of an unconsolidated unregulated financial E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules institution. It would include direct, indirect, and synthetic exposures to capital instruments, and exclude underwriting positions held by the banking organization for five business days or less. It would be equivalent to the banking organization’s potential loss on such exposure should the underlying capital instrument have a value of zero. The net long position would be the gross long position in the exposure (including covered positions under the market risk capital rules) net of short positions in the same exposure where the maturity of the short position either matches the maturity of the long position or has a residual maturity of at least one year. The long and short positions in the same index without a maturity date would be considered to have matching maturities. For covered positions under the market risk capital rules, if a banking organization has a contractual right or obligation to sell a long position at a specific point in time, and the counterparty in the contract has an obligation to purchase the long position if the banking organization exercises its right to sell, this point in time may be treated as the maturity of the long position. Therefore, if these conditions are met, the maturity of the long position and the short position would be deemed to be matched even if the maturity of the short position is less than one year. Gross long positions in investments in the capital instruments of unconsolidated financial institutions resulting from holdings of index securities may be netted against short positions in the same underlying index. However, short positions in indexes that are hedging long cash or synthetic positions may be decomposed to recognize the hedge. More specifically, the portion of the index that is composed of the same underlying exposure that is being hedged may be used to offset the long position as long as both the exposure being hedged and the short position in the index are positions subject to the market risk rule, the positions are fair valued on the banking organization’s balance sheet, and the hedge is deemed effective by the banking organization’s internal control processes assessed by the primary supervisor of the banking organization. Also, instead of looking through and monitoring its exact exposure to the capital of other financial institutions included in an index security, a banking organization may be permitted, with the prior approval of its primary federal supervisor, to use a conservative estimate of the amount of its investments in the capital instruments VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 of other financial institutions through the index security. An indirect exposure would result from the banking organization’s investment in an unconsolidated entity that has an exposure to a capital instrument of a financial institution. A synthetic exposure results from the banking organization’s investment in an instrument where the value of such instrument is linked to the value of a capital instrument of a financial institution. Examples of indirect and synthetic exposures would include: (1) An investment in the capital of an unconsolidated entity that has an investment in the capital of an unconsolidated financial institution; (2) a total return swap on a capital instrument of another financial institution; (3) a guarantee or credit protection, provided to a third party, related to the third party’s investment in the capital of another financial institution; (4) a purchased call option or a written put option on the capital instrument of another financial institution; and (5) a forward purchase agreement on the capital of another financial institution. Investments, including indirect and synthetic exposures, in the capital of unconsolidated financial institutions would be subject to the corresponding deduction approach if they surpass certain thresholds described below. With the prior written approval of the primary federal supervisor, for the period of time stipulated by the supervisor, a banking organization would not be required to deduct investments in the capital of unconsolidated financial institutions described in this section if the investment is made in connection with the banking organization providing financial support to a financial institution in distress. Likewise, a banking organization that is an underwriter of a failed underwriting can request approval from its primary federal supervisor to exclude underwriting positions related to such failed underwriting for a longer period of time. Question 33: The agencies solicit comments on the scope of indirect exposures for purposes of determining the exposure amount for investments in the capital of unconsolidated financial institutions. Specifically, what parameters (for example, a specific percentage of the issued and outstanding common shares of the unconsolidated financial institution) would be appropriate for purposes of limiting the scope of indirect exposures in this context and why? PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 52821 Question 34: What are the pros and cons of the proposed exclusion from the exposure amount of an investment in the capital of an unconsolidated financial institution for underwriting positions held by the banking organization for 5 business days or fewer? Would limiting the exemption to 5 days affect banking organizations’ willingness to underwrite stock offerings by smaller banking organizations? Please provide data to support your answer. Deduction of Non-Significant Investments in the Capital of Unconsolidated Financial Institutions Under the proposal, non-significant investments in the capital of unconsolidated financial institutions would be investments where a banking organization owns 10 percent or less of the issued and outstanding common shares of an unconsolidated financial institution. Under the proposal, if the aggregate amount of a banking organization’s nonsignificant investments in the capital of unconsolidated financial institutions exceeds 10 percent of the sum of the banking organization’s common equity tier 1 capital elements, minus certain applicable deductions and other regulatory adjustments to common equity tier 1 capital (the 10 percent threshold for non-significant investments), the banking organization would have to deduct the amount of the non-significant investments that are above the 10 percent threshold for nonsignificant investments, applying the corresponding deduction approach.79 The amount to be deducted from a specific capital component would be equal to the amount of a banking organization’s non-significant investments in the capital of unconsolidated financial institutions exceeding the 10 percent threshold for non-significant investments multiplied by the ratio of (1) the amount of nonsignificant investments in the capital of 79 The regulatory adjustments and deductions applied in the calculation of the 10 percent threshold for non-significant investments are those required under sections 22(a) through 22(c)(3) of the proposal. That is, the required deductions and adjustments for goodwill and other intangibles (other than MSAs) net of associated DTLs, DTAs that arise from operating loss and tax credit carryforwards net of related valuation allowances and DTLs (as described below), cash flow hedges associated with items that are not reported at fair value, excess ECLs (for advanced approaches banking organizations only), gains-on-sale on securitization exposures, gains and losses due to changes in own credit risk on fair valued financial liabilities, defined benefit pension fund net assets for banking organizations that are not insured by the FDIC (net of associated DTLs), investments in own regulatory capital instruments (not deducted as treasury stock), and reciprocal cross holdings. E:\FR\FM\30AUP2.SGM 30AUP2 52822 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules mstockstill on DSK4VPTVN1PROD with PROPOSALS2 unconsolidated financial institutions in the form of such capital component to (2) the amount of the banking organization’s total non-significant investments in the capital of unconsolidated financial institutions. The amount of a banking organization’s non-significant investments in the capital of unconsolidated financial institutions that does not exceed the 10 percent threshold for non-significant investments would generally be assigned the applicable risk weight under sections 32 (in the case of noncommon stock instruments), 52 (in the case of common stock instruments), or 53 (in the case of indirect investments via a mutual fund) of the proposal, as appropriate. For example, if a banking organization has a total of $200 in non-significant investments in the capital of unconsolidated financial institutions (of which 50 percent is in the form of common stock, 30 percent is in the form of an additional tier 1 capital instrument, and 20 percent is in the form of tier 2 capital subordinated debt) and $100 of these investments exceed the 10 percent threshold for nonsignificant investments, the banking organization would need to deduct $50 from its common equity tier 1 capital elements, $30 from its additional tier 1 capital elements and $20 from its tier 2 capital elements. Deduction of Significant Investments in the Capital of Unconsolidated Financial Institutions That Are Not in the Form of Common Stock Under the proposal, a significant investment of a banking organization in the capital of an unconsolidated financial institution would be an investment where the banking organization owns more than 10 percent of the issued and outstanding common shares of the unconsolidated financial institution. Significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock would be deducted applying the corresponding deduction approach described previously. Significant investments in the capital of unconsolidated financial institutions that are in the form of common stock would be subject to the common equity deduction threshold approach described in section III.B.4 of this preamble. Section 121 of the Graham-LeachBliley Act (GLBA) allows national banks and insured state banks to establish entities known as financial subsidiaries.80 One of the statutory 80 Public Law 106–102, 113 Stat. 1338, 1373 (Nov. 12, 1999). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 requirements for establishing a financial subsidiary is that a national bank or insured state bank must deduct any investment in a financial subsidiary from the bank’s capital.81 The agencies implemented this statutory requirement through regulation at 12 CFR 5.39(h)(1) (OCC), 12 CFR 208.73 (Board), and 12 CFR 362.18 (FDIC). Under the agencies’ current rules, a bank must deduct the aggregate amount of its outstanding equity investment, including retained earnings, in its financial subsidiaries from its total assets and tangible equity, and deduct such investment from its total risk-based capital (made equally from tier 1 and tier 2 capital). Under the NPR, investments by a national bank or insured state bank in financial subsidiaries would be deducted entirely from the bank’s common equity tier 1 capital.82 Because common equity tier 1 capital is a component of tangible equity, the proposed deduction from common equity tier 1 would automatically result in a deduction from tangible equity. The agencies believe that the more conservative treatment is appropriate for financial subsidiaries, given the risks associated with nonbanking activities. 4. Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital Threshold Deductions Under the proposal, a banking organization would deduct from the sum of its common equity tier 1 capital elements the amount of each of the following items that individually exceeds the 10 percent common equity tier 1 capital deduction threshold described below: (1) DTAs arising from temporary differences that could not be realized through net operating loss carrybacks (net of any related valuation allowances and net of DTLs, as described in section 22(e) of the proposal); (2) MSAs net of associated DTLs; and (3) significant investments in the capital of financial institutions in the form of common stock (referred to herein as items subject to the threshold deductions). A banking organization would calculate the 10 percent common equity tier 1 capital deduction threshold by taking 10 percent of the sum of a banking organization’s common equity tier 1 elements, less adjustments to, and deductions from common equity tier 1 capital required under sections 22(a) through (c) of the proposal.83 81 12 U.S.C. 24a(c); 12 U.S.C. 1831w(a)(2). deduction provided for in the agencies’ existing regulations would be removed. 83 The regulatory adjustments and deductions applied in the calculation of the 10 percent 82 The PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 As mentioned above, banking organizations would deduct from common equity tier 1 capital elements any goodwill embedded in the valuation of significant investments in the capital of unconsolidated financial institutions in the form of common stock. Therefore, a banking organization would be allowed to net such embedded goodwill against the exposure amount of such significant investment. For example, if a banking organization has deducted $10 of goodwill embedded in a $100 significant investment in the capital of an unconsolidated financial institution in the form of common stock, the banking organization would be allowed to net such embedded goodwill against the exposure amount of such significant investment (that is, the value of the investment would be $90 for purposes of the calculation of the amount that would be subject to deduction under this part of the proposal). In addition, the aggregate amount of the items subject to the threshold deductions that are not deducted as a result of the 10 percent common equity tier 1 capital deduction threshold described above would not be permitted to exceed 15 percent of a banking organization’s common equity tier 1 capital, as calculated after applying all regulatory adjustments and deductions required under the proposal (the 15 percent common equity tier 1 capital deduction threshold). That is, a banking organization would be required to deduct the amounts of the items subject to the threshold deductions that exceed 17.65 percent (the proportion of 15 percent to 85 percent) of common equity tier 1 capital elements, less all regulatory adjustments and deductions required for the calculation of the 10 percent common equity tier 1 capital deduction threshold mentioned above, and less the items subject to the 10 and 15 percent common equity tier 1 capital common equity deduction threshold are those required under sections 22(a) through (c) of the proposal. That is, the required deductions and adjustments for goodwill and other intangibles (other than MSAs) net of associated DTLs, DTAs that arise from operating loss and tax credit carryforwards net of related valuation allowances and DTLs (as described below), cash flow hedges associated with items that are not reported at fair value, excess ECLs (for advanced approaches banking organizations only), gains-on-sale on securitization exposures, gains and losses due to changes in own credit risk on fair valued financial liabilities, defined benefit pension fund net assets for banking organizations that are not insured by the FDIC (net of associated DTLs), investments in own regulatory capital instruments (not deducted as treasury stock), reciprocal cross holdings, nonsignificant investments in the capital of unconsolidated financial institutions, and, if applicable, significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules deduction thresholds in full. As described below, banking organization would be required to include the amounts of these three items that are not deducted from common equity tier 1 capital in its risk-weighted assets and assign a 250 percent risk weight to them. Under section 475 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C. 1828 note), the amount of readily marketable MSAs that a banking organization may include in regulatory capital cannot be valued at more than 90 percent of their fair market value 84 and the fair market value of such MSAs must be determined at least on a quarterly basis. Therefore, if the amount of MSAs a banking organization deducts after the application of the 10 percent and 15 percent common equity tier 1 deduction threshold is less than 10 percent of the fair value of its MSAs, the banking organization must deduct an additional amount of MSAs so that the total amount of MSAs deducted is at least 10 percent of the fair value of its MSAs. Question 35: The agencies solicit comments and supporting data on the additional regulatory capital deductions outlined in this section above. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 5. Netting of DTLs Against DTAs and Other Deductible Assets Under the proposal, the netting of DTLs against assets (other than DTAs) that are subject to deduction under section 22 of the proposal would be permitted provided the DTL is associated with the asset and the DTL would be extinguished if the associated asset becomes impaired or is derecognized under GAAP. Likewise, banking organizations would be prohibited from using the same DTL for netting purposes more than once. This practice would be generally consistent with the approach that the agencies currently take with respect to the netting of DTLs against goodwill. With respect to the netting of DTLs against DTAs, the amount of DTAs that arise from operating loss and tax credit carryforwards, net of any related valuation allowances, and the amount of DTAs arising from temporary differences that the banking organization could not realize through 84 Section 475 also provides that mortgage servicing rights may be valued at more than 90 percent of their fair market value but no more than 100 percent of such value, if the agencies jointly make a finding that such valuation would not have an adverse effect on the deposit insurance funds or the safety and soundness of insured depository institutions. The agencies have not made such a finding. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 net operating loss carrybacks, net of any related valuation allowances, would be allowed to be netted against DTLs if the following conditions are met. First, only the DTAs and DTLs that relate to taxes levied by the same taxation authority and that are eligible for offsetting by that authority would be offset for purposes of this deduction. And second, the amount of DTLs that the banking organization would be able to net against DTAs that arise from operating loss and tax credit carryforwards, net of any related valuation allowances, and against DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks, net of any related valuation allowances, would be allocated in proportion to the amount of DTAs that arise from operating loss and tax credit carryforwards (net of any related valuation allowances, but before any offsetting of DTLs) and of DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks (net of any related valuation allowances, but before any offsetting of DTLs), respectively. 6. Deduction From Tier 1 Capital of Investments in Hedge Funds and Private Equity Funds Pursuant to Section 619 of the Dodd-Frank Act Section 619 of the Dodd-Frank Act (the Volcker Rule) contains a number of restrictions and other prudential requirements applicable to any ‘‘banking entity’’ 85 that engages in proprietary trading or has certain interests in, or relationships with, a hedge fund or a private equity fund.86 Section 13(d)(3) of the Bank Holding Company Act, as added by the Volcker Rule, provides that the agencies ‘‘shall * * * adopt rules imposing additional capital requirements and quantitative limitations, including diversification requirements, regarding activities 85 The term ‘‘banking entity’’ is defined in section 13(h)(1) of the Bank Holding Company Act (BHC Act), as amended by section 619 of the Dodd-Frank Act. See 12 U.S.C. 1851(h)(1). The statutory definition includes any insured depository institution (other than certain limited purpose trust institutions), any company that controls an insured depository institution, any company that is treated as a bank holding company for purposes of section 8 of the International Banking Act of 1978 (12 U.S.C. 3106), and any affiliate or subsidiary of any of the foregoing. 86 Section 13 of the BHC Act defines the terms ‘‘hedge fund’’ and ‘‘private equity fund’’ as ‘‘an issuer that would be an investment company, as defined in the Investment Company Act of 1940 (15 U.S.C. 80a–1 et seq.), but for section 3(c)(1) or 3(c)(7) of that Act, or such similar funds as the appropriate Federal banking agencies, the Securities and Exchange Commission, and the Commodities Futures Trading Commission may, by rule, * * * determine.’’ See 12 U.S.C. 1851(h)(2). PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 52823 permitted under the Volcker Rule if the appropriate Federal banking agencies, the Securities and Exchange Commission, and the Commodity Future Trading Commission determine that additional capital and quantitative limitations are appropriate to protect the safety and soundness of banking entities engaged in such activities.’’ The Volcker Rule also added section 13(d)(4)(B)(iii) to the Bank Holding Company Act, which pertains to ownership interests in a hedge fund or private equity fund organized and offered by a banking entity (or an affiliate or subsidiary thereof) and provides, ‘‘For the purposes of determining compliance with the applicable capital standards under paragraph (3), the aggregate amount of the outstanding investments by a banking entity under this paragraph, including retained earnings, shall be deducted from the assets and tangible equity of the banking entity, and the amount of the deduction shall increase commensurate with the leverage of the hedge fund or private equity fund.’’ In October 2011, the agencies and the SEC issued a proposal to implement the Volcker Rule (the Volcker Rule proposal).87 Section 12(d) of the Volcker Rule proposal included a provision that would require a ‘‘banking entity’’ to deduct from tier 1 capital its investments in a hedge fund or a private equity fund that the banking entity organizes and offers pursuant to the Volcker rule as provided by section 13(d)(3) and (4)(B)(iii) of the Bank Holding Company Act. Under the Volcker Rule proposal, a banking organization subject to the Volcker Rule 88 would be required to deduct from tier 1 capital the aggregate value of its investments in hedge funds and private equity funds that the banking organization organizes and offers pursuant to section 13(d)(1)(G) of the Bank Holding Company Act. As proposed, the Volcker Rule deduction would not apply to an ownership interest in a hedge fund or private 87 The agencies sought public comment on the Volcker Rule proposal on October 11, 2011, and the Securities and Exchange Commission sought public comment on the same proposal on October 12, 2011. See 76 FR 68846 (Nov. 7, 2011). On January 11, 2012, the Commodities Futures Trading Commission requested comment on a substantively similar proposed rule implementing section 13 of the BHC Act. See 77 FR 8332 (Feb. 14, 2012). 88 The Volcker rule regulations apply to ‘‘banking entities,’’ as defined in section 13(h)(1) of the Bank Holding Company Act (BHC Act), as amended by section 619 of the Dodd-Frank Act. This term generally includes all banking organizations subject to the Federal banking agencies’ capital regulations with the exception of limited purpose trust institutions that are not affiliated with a depository institution or bank holding company. E:\FR\FM\30AUP2.SGM 30AUP2 52824 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules equity fund held by a banking entity pursuant to any of the exemption activity categories in section 13(d)(1) of the Bank Holding Company Act. For instance, a banking entity that acquires or retains an investment in a small business investment company or an investment designed to promote the public welfare of the type permitted under 12 U.S.C. 24 (Eleventh), which are specifically permitted under section 13(d)(1)(E) of the Bank Holding Company Act, would not be required to deduct the value of such ownership interest from its tier 1 capital. The agencies believe that this proposed capital requirement, as it applies to banking organizations, should be considered within the context of the agencies’ entire regulatory capital framework, so that its potential interaction with all other regulatory capital requirements is assessed fully. The agencies intend to avoid prescribing overlapping regulatory capital requirements for the same exposures. Therefore, once the regulatory capital requirements prescribed by the Volcker Rule are finalized, the Federal banking agencies expect to amend the regulatory capital treatment for investments in the capital of an unconsolidated financial institution—currently set forth in section 22 of the proposal—to include the deduction that would be required under the Volcker Rule. Exposures subject to that deduction would not also be subject to the capital requirements for investments in the capital of an unconsolidated financial institution nor would they be considered for the purpose of determining the relevant thresholds for the deductions from regulatory capital required for investments in the capital of an unconsolidated financial institution. IV. Denominator Changes Related to the Proposed Regulatory Changes Consistent with Basel III, for purposes of calculating total risk-weighted assets, the proposal would require a banking organization to assign a 250 percent risk weight to (1) MSAs, (2) DTAs arising from temporary differences that a banking organization could not realize through net operating loss carrybacks (net of any related valuation allowances and net of DTLs, as described in section 22(e) of the proposal), and (3) significant investments in the capital of unconsolidated financial institutions in the form of common stock that are not deducted from tier 1 capital pursuant to section 22 of the proposal. Basel III also requires banking organizations to apply a 1,250 percent risk weight to certain exposures that are deducted from total capital under the general risk-based capital rules. Accordingly, for purposes of calculating total risk-weighted assets, the proposal would require a banking organization to apply a 1,250 percent risk weight to the portion of a credit-enhancing interestonly strips that does not constitute an after-tax-gain-on-sale. A banking organization would not be required to deduct such exposures from regulatory capital. V. Transitions Provisions The main goal of the transition provisions is to give banking organizations sufficient time to adjust to the proposal while minimizing the potential impact that implementation could have on their ability to lend. The proposed transition provisions have been designed to ensure compliance with the Dodd-Frank Act. As a result, they could, in certain circumstances, be more stringent than the transitional arrangements proposed in Basel III. The transition provisions would apply to the following areas: (1) The minimum regulatory capital ratios; (2) the capital conservation and countercyclical capital buffers; (3) the regulatory capital adjustments and deductions; and (4) non-qualifying capital instruments. In the Standardized Approach NPR, the agencies are proposing changes to the calculation of risk-weighted assets that would be effective January 1, 2015, with an option to early adopt. A. Minimum Regulatory Capital Ratios The transition period for the minimum common equity tier 1 and tier 1 capital ratios is from January 1, 2013 to December 31, 2014 as set forth below. TABLE 9—TRANSITION FOR MINIMUM CAPITAL RATIOS Transition Minimum Common Equity Tier 1 and Tier 1 Capital Ratios Common equity tier 1 capital ratio Transition period mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar year 2013 ............................................................................................................................................. Calendar year 2014 ............................................................................................................................................. Calendar year 2015 and thereafter ..................................................................................................................... The minimum common equity tier 1 and tier 1 capital ratios, as well as the minimum total capital ratio, will be calculated during the transition period using the definitions for the respective capital components in section 20 of the proposed rule and using the proposed transition provisions for the regulatory adjustments and deductions and for the non-qualifying capital instruments described in this section. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 B. Capital Conservation and Countercyclical Capital Buffer As explained in more detail in section 11 of the proposed rule, a banking organization’s applicable capital conservation buffer would be the lowest of the following three ratios: the banking organization’s common equity tier 1, tier 1 and total capital ratio less its minimum common equity tier 1, tier 1 PO 00000 Frm 00034 Fmt 4701 Sfmt 4702 3.5 4.0 4.5 Tier 1 capital ratio 4.5 5.5 6.0 and total capital ratio requirement, respectively. Table 10 shows the regulatory capital levels banking organizations would generally need to meet during the transition period to avoid becoming subject to limitations on capital distributions and discretionary bonus payments from January 1, 2016 until January 1, 2019. E:\FR\FM\30AUP2.SGM 30AUP2 52825 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules TABLE 10—PROPOSED REGULATORY CAPITAL LEVELS Jan. 1, 2013 (percent) Capital conservation buffer .................................... Minimum common equity tier 1 capital ratio + capital conservation buffer ................................. Minimum tier 1 capital ratio + capital conservation buffer .................................................................. Minimum total capital ratio + capital conservation buffer .................................................................. Maximum potential countercyclical capital buffer .. Banking organizations would not be subject to the capital conservation and the countercyclical capital buffer until January 1, 2016. From January 1, 2016 Jan. 1, 2014 (percent) Jan. 1, 2015 (percent) Jan. 1, 2016 (percent) .................. .................. .................. 0.625 1.25 1.875 2.5 3.5 4.0 4.5 5.125 5.75 6.375 7.0 4.5 5.5 6.0 6.625 7.25 7.875 8.5 8.0 .................. 8.0 .................. 8.0 .................. 8.625 0.625 9.25 1.25 9.875 1.875 10.5 2.5 through December 31, 2018, banking organizations would be subject to transitional arrangements with respect to the capital conservation and Jan. 1, 2017 (percent) Jan. 1, 2018 (percent) Jan. 1, 2019 (percent) countercyclical capital buffers as outlined in more detail in table 11. TABLE 11—TRANSITION PROVISION FOR THE CAPITAL CONSERVATION AND COUNTERCYCLICAL CAPITAL BUFFER Maximum payout ratio (as a percentage of eligible retained income) Capital conservation buffer (assuming a countercyclical capital buffer of zero) Calendar year 2016 ........................ Greater than 0.625 percent ................................................................... Less than or equal to 0.625 percent, and greater than 0.469 percent Less than or equal to 0.469 percent, and greater than 0.313 percent Less than or equal to 0.313 percent, and greater than 0.156 percent Less than or equal to 0.156 percent ..................................................... No payout ratio limitation applies 60 percent 40 percent 20 percent 0 percent Calendar year 2017 ........................ Greater than 1.25 percent ..................................................................... Less than or equal to 1.25 percent, and greater than 0.938 percent ... Less than or equal to 0.938 percent, and greater than 0.625 percent Less than or equal to 0.625 percent, and greater than 0.313 percent Less than or equal to 0.313 percent ..................................................... No payout ratio limitation applies 60 percent 40 percent 20 percent 0 percent Calendar year 2018 ........................ mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Transition period Greater than 1.875 percent ................................................................... Less than or equal to 1.875 percent, and greater than 1.406 percent Less than or equal to 1.406 percent, and greater than 0.938 percent Less than or equal to 0.938 percent, and greater than 0.469 percent Less than or equal to 0.469 percent ..................................................... No payout ratio limitation applies 60 percent 40 percent 20 percent 0 percent As illustrated in table 11, from January 1, 2016 through December 31, 2016, a banking organization would be able to make capital distributions and discretionary bonus payments without limitation under this section as long as it maintains a capital conservation buffer greater than 0.625 percent (plus for an advanced approaches banking organization, any applicable countercyclical capital buffer amount). From January 1, 2017 through December 31, 2017, a banking organization would be able to make capital distributions and discretionary bonus payments without limitation under this section as long as it maintains a capital conservation buffer greater than 1.25 percent (plus for an advanced approaches banking organization, any applicable countercyclical capital buffer amount). From January 1, 2018 through December 31, 2018, a banking organization would be able to make capital distributions and discretionary bonus payments without VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 limitation under this section as long as it maintains a capital conservation buffer greater than 1.875 percent (plus for an advanced approaches banking organization, any applicable countercyclical capital buffer amount). From January 1, 2019 onward, a banking organization would be able to make capital distributions and discretionary bonus payments without limitation under this section as long as it maintains a capital conservation buffer greater than 2.5 percent (plus for an advanced approaches banking organization, 100 percent of the applicable countercyclical capital buffer amount). For example, if a banking organization’s capital conservation buffer is 1.0 percent (for example, its common equity tier 1 capital ratio is 5.5 percent or its tier 1 capital ratio is 7.0 percent) as of December 31, 2017, the banking organization’s maximum payout ratio during the first quarter of 2018 would be 60 percent. If a banking PO 00000 Frm 00035 Fmt 4701 Sfmt 4702 organization has a capital conservation buffer of 0.25 percent as of December 31, 2017, the banking organization would not be allowed to make capital distributions and discretionary bonus payments during the first quarter of 2018 under the proposed transition provisions. If a banking organization has a capital conservation buffer of 1.5 percent as of December 31, 2017, it would not have any restrictions under this section on the amount of capital distributions and discretionary bonus payments during the first quarter of 2018. If applicable, the countercyclical capital buffer would be phased-in according to the transition schedule described in table 11 by proportionately expanding each of the quartiles in the table by the countercyclical capital buffer amount. The maximum countercyclical capital buffer amount would be 0.625 percent on January 1, 2016 and would increase each subsequent year by an additional 0.625 E:\FR\FM\30AUP2.SGM 30AUP2 52826 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules percentage points, to reach its fully phased-in maximum of 2.5 percent on January 1, 2019. C. Regulatory Capital Adjustments and Deductions Banking organizations are currently subject to a series of deductions from and adjustments to regulatory capital, most of which apply at the tier 1 capital level, including deductions for goodwill, MSAs, certain DTAs, and adjustments for net unrealized gains and losses on AFS securities and for accumulated net gains and losses on cash flow hedges and defined benefit pension obligations. Under section 22 of the proposed rule, banking organizations would become subject to a series of deductions and adjustments, the bulk of which will be applied at the common equity tier 1 capital level. In order to give sufficient time to banking organizations to adapt to the new regulatory capital adjustments and deductions, the proposed rule incorporates transition provisions for such adjustments and deductions. From January 1, 2013 through December 31, 2017, a banking organization would be required to make the regulatory capital adjustments to and deductions from regulatory capital in section 22 of the proposed rule in accordance with the proposed transition provisions for such adjustments and deductions outlined below. Starting on January 1, 2018, banking organizations would apply all regulatory capital adjustments and deductions as outlined in section 22 of the proposed rule. Deductions for Certain Items in Section 22(a) of the Proposed Rule From January 1, 2013 through December 31, 2017, a banking organization would deduct from common equity tier 1 or from tier 1 capital elements goodwill (section 22(a)(1)), DTAs that arise from operating loss and tax credit carryforwards (section 22(a)(3)), gain-on-sale associated with a securitization exposure (section 22(a)(4)), defined benefit pension fund assets (section 22(a)(5)), and expected credit loss that exceeds eligible credit reserves for the case of banking organizations subject to subpart E of the proposed rule (section 22(a)(6)), in accordance with table 12 below. During this period, any of these items that are not deducted from common equity tier 1 capital, are deducted from tier 1 capital instead. TABLE 12—PROPOSED TRANSITION DEDUCTIONS UNDER SECTION 22(a)(1) AND SECTIONS 22(a)(3)–(a)(6) OF THE PROPOSAL Transition deductions under section 22(a)(1) Transition period mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year 2013 2014 2015 2016 2017 2018 Percentage of the deductions from common equity tier 1 capital Percentage of the deductions from common equity tier 1 capital Percentage of the deductions from tier 1 capital 100 100 100 100 100 100 0 20 40 60 80 100 100 80 60 40 20 0 ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. and thereafter ......................................................... In accordance with table 12, starting in 2013, banking organizations would be required to deduct the full amount of goodwill (net of any associated DTLs), including any goodwill embedded in the valuation of significant investments in the capital of unconsolidated financial institutions, from common equity tier 1 capital elements. This approach is stricter than that under Basel III, which transitions the goodwill deduction from common equity tier 1 capital in line with the rest of the deductible items. Under U.S. law, goodwill cannot be included in a banking organization’s regulatory capital. Additionally, the agencies believe that fully deducting goodwill from common equity tier 1 capital Transition deductions under sections 22(a)(3)–(a)(6) elements starting on January 1, 2013 would result in a more meaningful common equity tier 1 capital ratio from a supervisory and market perspective. For example, from January 1, 2014 through December 31, 2014, a banking organization would deduct 100 percent of goodwill from common equity tier 1 capital elements. However, during that same period, only 20 percent of the aggregate amount of DTAs that arise from operating loss and tax credit carryforwards, gain-on-sale associated with a securitization exposure, defined benefit pension fund assets, and expected credit loss that exceeds eligible credit reserves (for a banking organization subject to subpart E of the proposed rule), would be deducted from common equity tier 1 capital elements while 80 percent of such aggregate amount would be deducted from tier 1 capital elements. Starting on January 1, 2018, 100 percent of the items in section 22(a) of the proposed rule would be fully deducted from common equity tier 1 capital elements. Deductions for Intangibles Other Than Goodwill and MSAs For intangibles other than goodwill and MSAs, including PCCRs (section 22(a)(2) of the proposal), the transition arrangement is outlined in table 13. During this transition period, any of these items that are not deducted would be subject to a risk weight of 100 percent. TABLE 13—PROPOSED TRANSITION DEDUCTIONS UNDER SECTION 22(a)(2) OF THE PROPOSAL Transition period Transition deductions under section 22(a)(2)—Percentage of the deductions from common equity tier 1 capital Calendar year 2013 ................................................................................................................................... Calendar year 2014 ................................................................................................................................... 0 20 VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00036 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 52827 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules TABLE 13—PROPOSED TRANSITION DEDUCTIONS UNDER SECTION 22(a)(2) OF THE PROPOSAL—Continued Transition deductions under section 22(a)(2)—Percentage of the deductions from common equity tier 1 capital Transition period Calendar Calendar Calendar Calendar year year year year 2015 2016 2017 2018 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... For example, from January 1, 2014 through December 31, 2014, 20 percent of the aggregate amount of the deductions that would be required under section 22(a)(2) of the proposed rule for intangibles other than goodwill and MSAs would be applied to common equity tier 1 capital, while any such intangibles that are not deducted from capital during the transition period would be risk-weighted at 100 percent. Regulatory Adjustments Under Section 22(b)(2) of the Proposed Rule From January 1, 2013 through December 31, 2017, banking organizations would apply the regulatory adjustments under section 22(b)(2) of the proposed rule related to 40 60 80 100 changes in the fair value of liabilities due to changes in the banking organization’s own credit risk to common equity tier 1 or tier 1 capital in accordance with table 14. During this period, any of the adjustments related to this item that are not applied to common equity tier 1 capital are applied to tier 1 capital instead. TABLE 14—PROPOSED TRANSITION ADJUSTMENTS UNDER SECTION 22(b)(2) Transition adjustments under section 22(b)(2) Transition period Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year 2013 2014 2015 2016 2017 2018 Percentage of the adjustment applied to common equity tier 1 capital Percentage of the adjustment applied to tier 1 capital 0 20 40 60 80 100 100 80 60 40 20 0 ................................................................................. ................................................................................. ................................................................................. ................................................................................. ................................................................................. and thereafter ......................................................... For example, from January 1, 2013 through December 31, 2013, no regulatory adjustments to common equity tier 1 capital related to changes in the fair value of liabilities due to changes in the banking organization’s own credit risk would be applied to common equity tier 1 capital, but 100 percent of such adjustments would be applied to tier 1 capital (that is, if the aggregate amount of these adjustments is positive, 100 percent would be deducted from tier 1 capital elements and if such aggregate amount is negative, 100 percent would be added back to tier 1 capital elements). Likewise, from January 1, 2014 through December 31, 2014, 20 percent of the aggregate amount of the regulatory adjustments to common equity tier 1 capital related to this item would be applied to common equity tier 1 capital and 80 percent would be applied to tier 1 capital. Starting on January 1, 2018, 100 percent of the regulatory capital adjustments related to changes in the fair value of liabilities due to changes in the banking organization’s own credit risk would be applied to common equity tier 1 capital. Phase Out of Current AOCI Regulatory Capital Adjustments Until December 31, 2017, the aggregate amount of net unrealized gains and losses on AFS debt securities, accumulated net gains and losses related to defined benefit pension obligations, unrealized gains on AFS equity securities, and accumulated net gains and losses on cash flow hedges related to items that are reported on the balance sheet at fair value included in AOCI (transition AOCI adjustment amount) is treated as set forth in table 15 below. Specifically, if a banking organization’s transition AOCI adjustment amount is positive, it would need to adjust its common equity tier 1 capital by deducting the appropriate percentage of such aggregate amount in accordance with table 15 below and if such amount is negative, it would need to adjust its common equity tier 1 capital by adding back the appropriate percentage of such aggregate amount in accordance with table 15 below. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 TABLE 15—PROPOSED PERCENTAGE OF THE TRANSITION AOCI ADJUSTMENT AMOUNT Percentage of the transition AOCI adjustment amount to be applied to common equity tier 1 capital Transition period Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year VerDate Mar<15>2010 2013 2014 2015 2016 2017 2018 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00037 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 100 80 60 40 20 0 30AUP2 52828 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules For example, if during calendar year 2013 a banking organization’s transition AOCI adjustment amount is positive 100 percent would be deducted from common equity tier 1 capital elements and if such aggregate amount is negative 100 percent would be added back to common equity tier 1 capital elements. Starting on January 1, 2018, there would be no adjustment for net unrealized gains and losses on AFS securities or for accumulated net gains and losses on cash flow hedges related to items that are reported on the balance sheet at fair value included in AOCI. Phase Out of Unrealized Gains on AFS Equity Securities in Tier 2 Capital A banking organization would gradually decrease the amount of unrealized gains on AFS equity securities it currently holds in tier 2 capital during the transition period in accordance with table 16. TABLE 16—PROPOSED PERCENTAGE OF UNREALIZED GAINS ON AFS EQUITY SECURITIES THAT MAY BE INCLUDED IN TIER 2 CAPITAL Percentage of unrealized gains on AFS equity securities that may be included in tier 2 capital Transition period Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year 2013 2014 2015 2016 2017 2018 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... For example, during calendar year 2014, banking organizations would include up to 36 percent (80 percent of 45 percent) of unrealized gains on AFS equity securities in tier 2 capital; during calendar years 2015, 2016, 2017, and 2018 (and thereafter) these percentages would go down to 27, 18, 9 and zero, respectively. Deductions Under Sections 22(c) and 22(d) of the Proposed Rule From January 1, 2013 through December 31, 2017, a banking organization would calculate the appropriate deductions under sections 22(c) and 22(d) of the proposed rule related to investments in capital instruments and to the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds (that is, MSAs, DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock) as set forth in table 17. Specifically, during such transition period, the banking organization would make the percentage 45 36 27 18 9 0 of the aggregate common equity tier 1 capital deductions related to these items in accordance with the percentages outlined in table 17 and would apply a 100 percent risk-weight to the aggregate amount of such items that are not deducted under this section. Beginning on January 1, 2018, a banking organization would be required to apply a 250 percent risk-weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted from common equity tier 1 capital. TABLE 17—PROPOSED TRANSITION DEDUCTIONS UNDER SECTIONS 22(c) AND 22(d) OF THE PROPOSAL Transition deductions under sections 22(c) and 22(d)—Percentage of the deductions from common equity tier 1 capital elements Transition period mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year 2013 2014 2015 2016 2017 2018 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... However, banking organizations would not be subject to the methodology to calculate the 15 percent common equity deduction threshold for DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks, MSAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock described in section 22(d) of the proposed rule from January 1, 2013 through December 31, 2017. During this VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 transition period, a banking organization would be required to deduct from its common equity tier 1 capital elements a specified percentage of the amount by which the aggregate sum of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds exceeds 15 percent of the sum of the banking organization’s common equity tier 1 capital elements after making the deductions required under sections 22(a) through (c) of the proposed rule. These deductions include goodwill, PO 00000 Frm 00038 Fmt 4701 Sfmt 4702 0 20 40 60 80 100 intangibles other than goodwill and MSAs, DTAs that arise from operating loss and tax credit carryforwards cash flow hedges associated with items that are not fair valued, excess ECLs (for advanced approaches banking organizations), gains-on-sale on certain securitization exposures, defined benefit pension fund net assets for banks that are not insured by the FDIC, and reciprocal cross holdings, gains (or adding back losses) due to changes in own credit risk on fair valued financial liabilities, and after applying the E:\FR\FM\30AUP2.SGM 30AUP2 52829 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules appropriate common equity tier 1 capital deductions related to nonsignificant investments in the capital of unconsolidated financial institutions (the 15 percent common equity deduction threshold for transition purposes). Notwithstanding the transition provisions for the items under sections 22(c) and 22(d) of the proposed rule described above, if the amount of MSAs a banking organization deducts after the application of the appropriate thresholds is less than 10 percent of the fair value of its MSAs, the banking organization must deduct an additional amount of MSAs so that the total amount of MSAs deducted is at least 10 percent of the fair value of its MSAs. Beginning January 1, 2018, the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds would not be permitted to exceed 15 percent of the banking organization’s common equity tier 1 capital after all deductions. That is, as of January 1, 2018, the banking organization would be required to deduct, from common equity tier 1 capital elements the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that exceed 17.65 percent of common equity tier 1 capital elements less the regulatory adjustments and deductions mentioned in the previous paragraph and less the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds in full. For example, during calendar year 2014, 20 percent of the aggregate amount of the deductions required for the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds would be applied to common equity tier 1 capital, while any such items not deducted would be risk weighted at 100 percent. Starting on January 1, 2018, 100 percent of the appropriate aggregate deductions described in sections 22(c) and 22(d) of the proposed rule would be fully applied, while any of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted would be risk weighted at 250 percent. Numerical Example for the Transition Provisions The following example illustrates the potential impact from regulatory capital adjustments and deductions on the common equity tier 1 capital ratios of a banking organization. As outlined in table 18, the banking organization in this example has common equity tier 1 capital elements (before any deductions) and total risk weighted assets of $200 and $1000 respectively, and also has goodwill, DTAs that arise from operating loss and tax credit carryforwards, non-significant investments in the capital of unconsolidated financial institutions, DTAs arising from temporary differences that could not be realized through net operating loss carrybacks, MSAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock of $40, $30, $10, $30, $20, and $10, respectively. For simplicity, this example only focuses on common equity tier 1 capital and assumes that the risk weight applied to all assets is 100 percent (the only exception being the 250 percent risk weight applied in 2018 to the ‘‘items subject to an aggregate 15% threshold’’). TABLE 18—EXAMPLE—IMPACT OF REGULATORY DEDUCTIONS DURING TRANSITION PERIOD Common equity tier 1 capital elements, net of treasury stock (CET1) elements (before deductions) ........................................................... Items subject to full deduction: Goodwill .................................................................................................................................................................................................... Deferred tax assets (DTAs) that arise from operating loss and tax credit carryforwards (DTAs from operating loss carryforwards) ... Items subject to threshold deductions: Non-significant investments in the capital of unconsolidated financial institutions (non-significant investments) .................................. Items subject to aggregate 15% threshold: DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks (temporary differences DTAs) ............................................................................................................................................................... MSAs ............................................................................................................................................................................................................... Significant investments in the capital of unconsolidated financial institutions in the form of common stock (significant investments) ......... Risk-weighted assets (RWAs) ......................................................................................................................................................................... Table 19 below illustrates the process to calculate the deductions while showing the potential impact of the deductions on the common equity tier 1 200 40 30 10 30 20 10 1000 capital ratio of the banking organization during the transition period. TABLE 19—EXAMPLE—IMPACT OF REGULATORY DEDUCTIONS DURING TRANSITION PERIOD mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Transition calendar years Base case 2013 Percentage of deduction .................................................................... CET1 before deductions .................................................................... Deduction of goodwill ......................................................................... Deduction of DTAs from operating loss carryforwards ..................... CET1 after non-threshold deductions ................................................ 10% limit for non-significant investments .......................................... Deduction of non-significant investments .......................................... CET1 after non-threshold deductions and deduction of non-significant investments ............................................................................ 10% CET1 limit for items subject to 15% threshold .......................... Deduction of significant investments due to 10% limit ...................... Deduction of temporary differences DTAs due to 10% limit ............. Deduction of MSAs due to 10% limit ................................................. CET1 after deductions related to 10% limit ....................................... Outstanding significant investments .................................................. .............. 200 40 30 130 13.0 0 .............. 200 40 0 160 16.0 0 20% 200 40 6 154 15.4 0 40% 200 40 12 148 14.8 0 60% 200 40 18 142 14.2 0 80% 200 40 24 136 13.6 0 100% 200 40 30 130 13.0 0 130 13.0 0 17.0 7.0 106 10 160 16.0 0 0 0 160 10 154 15.4 0 3.4 1.4 149.2 10 148 14.8 0 6.8 2.8 138.4 10 142 14.2 0 10.2 4.2 127.6 10 136 13.6 0 13.6 5.6 116.8 10 130 13.0 0 17.0 7.0 106.0 10 VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00039 Fmt 4701 Sfmt 4702 2014 E:\FR\FM\30AUP2.SGM 2015 30AUP2 2016 2017 2018 52830 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules TABLE 19—EXAMPLE—IMPACT OF REGULATORY DEDUCTIONS DURING TRANSITION PERIOD—Continued Base case Transition calendar years 2014 2015 2016 2017 2018 13 13 36 19.5 30 20 60 24.0 27 19 55 23.1 23 17 50 22.2 20 16 46 21.3 16 14 41 20.4 13 13 36 19.5 16.5 0.0 3.3 6.6 9.9 13.2 .............. 0 89.5 889.5 .............. 2 158.0 928.0 .............. 0 145.9 921.9 .............. 0 131.8 913.8 .............. 0 117.7 905.7 .............. 0 103.6 897.6 .............. 0 .............. .............. 12 .............. .............. .............. .............. .............. .............. 24 CET1 after all deductions—starting 2018 .......................................... 2018 RWAs ........................................................................................ .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. .............. 82.4 901 CET1 ratio .......................................................................................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Outstanding temporary differences DTAs ......................................... Outstanding MSAs ............................................................................. Sum of outstanding items subject to 15% threshold ......................... 15% CET1 limit (for items subject to 15% threshold) (pre-2018) ..... Deduction of outstanding items subject to 15% threshold due to 15% limit (pre-2018) ....................................................................... Additional MSA deduction as of the statutory limit (i.e., 10% of FV of MSAs) ......................................................................................... CET1 after all deductions (pre-2018) ................................................ Total New RWAs (pre-2018) ............................................................. 15% CET1 limit (for items subject to 15% threshold) (2018) ............ Deduction of outstanding items subject to 15% threshold due to 15% limit (2018) ............................................................................. 2013 .............. 17.0% 15.8% 14.4% 13.0% 11.5% 9.1% To establish the starting point (or ‘‘base case’’) for the deductions, the banking organization calculates the fully phased-in deductions, except in the case of the 15 percent deduction threshold, which is calculated during the transition period as described above. Common equity tier 1 capital elements, after the deduction of items that are not subject to the threshold deductions are $160, $154, $148, $142, and $136, and $130 as of January 1, 2013, January 1, 2014, January 1, 2015, January 1, 2016, January 1, 2017, and January 1, 2018, respectively. In this particular example, these numbers are obtained after fully deducting goodwill, and after deducting the base case deduction for DTAs that arise from operating loss and tax credit carryforwards multiplied by the appropriate percentage under the transition arrangement for deductions outlined in table 12 of this section. That is, after deducting from common equity tier 1 capital elements 100 percent of goodwill and 20 percent of the base case deduction for DTAs that arise from operating loss and tax credit carryforwards during 2014, 40 percent during 2015, 60 percent during 2016, 80 percent during 2017, and 100 percent during 2018).89 After applying the required deduction as a result of the 10 and 15 percent common equity tier 1 deduction thresholds outlined in table 17 of this section and after making the additional $2 deduction of MSAs during 2013 as a result of the MSA minimum statutory deduction (that is, 10 percent of the fair 89 As outlined in table 12, the amount of DTAs that arise from operating loss and tax credit carryforwards that are not deducted from common equity tier 1 capital during the transition period are deducted from tier 1 capital instead. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 value of the MSAs), the common equity tier 1 capital elements would be $158, $146, $132, $118, $104, and $82 as of January 1, 2013, January 1, 2014, January 1, 2015, January 1, 2016, January 1, 2017, and January 1, 2018, respectively. After adjusting the total risk weighted assets measure as a result of the numerator deductions, the common equity tier 1 capital ratios would be 17.0 percent, 15.8 percent, 14.4 percent, 13.0 percent, 11.5 percent and 9.1 percent as of January 1, 2013, January 1, 2014, January 1, 2015, January 1, 2016, January 1, 2017, and January 1, 2018, respectively. Any DTAs arising from temporary differences that could not be realized through net operating loss carrybacks, MSAs, or significant investments in the capital of unconsolidated financial institutions in the form of common stock that are not deducted from common equity tier 1 capital elements as a result of the transitional arrangements would be risk weighted at 100 percent during the transition period and would be risk weighted at 250 percent starting on 2018. D. Non-Qualifying Capital Instruments Under the NPR, non-qualifying capital instruments, including instruments that are part of minority interest, would be phased out from regulatory capital depending on the size of the issuing banking organization and the type of capital instrument involved. Under the proposed rule, and in line with the requirements under the Dodd-Frank Act, instruments like cumulative perpetual preferred stock and trust preferred securities, which bank holding companies have historically included (subject to limits) in tier 1 capital under PO 00000 Frm 00040 Fmt 4701 Sfmt 4702 the ‘‘restricted core capital elements’’ bucket generally would not comply with either the eligibility criteria for additional tier 1 capital instruments outlined in section 20 of the proposed rule or the general risk-based capital rules for depository institutions and therefore would be phased out from tier 1 capital as outlined in more detail below. However, these instruments would generally be included without limits in tier 2 capital if they meet the eligibility criteria for tier 2 capital instruments outlined in section 20 of the proposed rule. Phase-Out Schedule for Non-Qualifying Capital Instruments of Depository Institution Holding Companies of $15 Billion or More in Total Consolidated Assets Under section 171 of the Dodd-Frank Act, depository institution holding companies with total consolidated assets greater than or equal to $15 billion as of December 31, 2009 (depository institution holding companies of $15 billion or more) would be required to phase out their non-qualifying capital instruments as set forth in table 20 below. In the case of depository institution holding companies of $15 billion or more, nonqualifying capital instruments are debt or equity instruments issued before May 19, 2010, that do not meet the criteria in section 20 of the proposed rule and were included in tier 1 or tier 2 capital as of May 19, 2010. Table 20 would apply separately to additional tier 1 and tier 2 non-qualifying capital instruments but the amount of non-qualifying capital instruments that would be excluded from additional tier 1 capital under this section would be included in tier 2 E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules capital without limitation if they meet the eligibility criteria for tier 2 capital instruments under section 20 of the proposed rule. If a depository institution holding company of $15 billion or more acquires a depository institution holding company with total consolidated assets of less than $15 billion as of December 31, 2009 (depository institution holding company under $15 billion) or a depository institution holding company that was a mutual holding company as of May 19, 2010 (2010 MHC), the non-qualifying capital instruments of the resulting organization would be subject to the phase-out schedule outlined in table 20. Likewise, if a depository institution 52831 holding company under $15 billion makes an acquisition and the resulting organization has total consolidated assets of $15 billion or more, its nonqualifying capital instruments would also be subject to the phase-out schedule outlined in table 20. TABLE 20—PROPOSED PERCENTAGE OF NON-QUALIFYING CAPITAL INSTRUMENTS INCLUDED IN ADDITIONAL TIER 1 OR TIER 2 CAPITAL Percentage of non-qualifying capital instruments included in additional tier 1 or tier 2 capital for depository institution holding companies of $15 billion or more Transition period (calendar year) Calendar Calendar Calendar Calendar year year year year 2013 2014 2015 2016 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... Accordingly, under the proposed rule a depository institution holding company of $15 billion or more would be allowed to include only 75 percent of non-qualifying capital instruments in regulatory capital as of January 1, 2013, 50 percent as of January 1, 2014, 25 percent as of January 1, 2015, and zero percent as of January 1, 2016 and thereafter. Phase-Out Schedule for Non-Qualifying Capital Instruments of Depository Institution Holding Companies Under $15 Billion, 2010 MHCs, and Depository Institutions Under the proposed rule, nonqualifying capital instruments of depository institutions and of depository institution holding companies under $15 billion and 2010 MHCs (issued before September 12, 2010), that were outstanding as of January 1, 2013 would be included in capital up to the percentage of the 75 50 25 0 outstanding principal amount of such non-qualifying capital instruments as of December 31, 2013 indicated in table 21. Table 21 applies separately to additional tier 1 and tier 2 nonqualifying capital instruments but the amount of non-qualifying capital instruments that would be excluded from additional tier 1 capital under this section would be included in the tier 2 capital, provided the instruments meet the eligibility criteria for tier 2 capital instruments under section 20 of the proposed rule. TABLE 21—PROPOSED PERCENTAGE OF NON-QUALIFYING CAPITAL INSTRUMENTS INCLUDED IN ADDITIONAL TIER 1 OR TIER 2 CAPITAL Percentage of non-qualifying capital instruments included in additional tier 1 or tier 2 capital for depository institution holding companies under $15 billion, depository institutions, and 2010 MHCs Transition period (calendar year) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year year year year year 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... For example, a banking organization that issued a tier 1 non-qualifying capital instrument in August 2010 would be able to count 90 percent of the notional outstanding amount of the instrument as of January 1, 2013 during calendar year 2013 and 80 percent during calendar year 2014. As of January 1, 2022, no tier 1 non-qualifying capital instruments would be recognized in tier 1 capital. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Phase-Out Schedule for Surplus and Non-Qualifying Minority Interest From January 1, 2013 through December 31, 2018, a banking organization would be allowed to include in regulatory capital a portion of the common equity tier 1, tier 1, or total capital minority interest that would be disqualified from regulatory capital as a result of the requirements and PO 00000 Frm 00041 Fmt 4701 Sfmt 4702 90 80 70 60 50 40 30 20 10 0 limitations outlined in section 21 (surplus minority interest). If a banking organization has surplus minority interest outstanding as of January 1, 2013, such surplus minority interest would be subject to the phase-out schedule outlined in table 22. For example, if a banking organization has $10 of surplus common equity tier 1 minority interest as of January 1, 2013, it would be allowed to include all such E:\FR\FM\30AUP2.SGM 30AUP2 52832 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules surplus in its common equity tier 1 capital during calendar year 2013, $8 during calendar year 2014, $6 during calendar year 2015, $4 during calendar year 2016, $2 during calendar year 2017 and $0 starting in January 1, 2018. Likewise, from January 1, 2013 through December 31, 2018, a banking organization would be able to include in tier 1 or total capital a portion of the instruments issued by a consolidated subsidiary that qualified as tier 1 or total capital of the banking organization as of December 31, 2012 but that would not qualify as tier 1 or total minority interest as of January 1, 2013 (non-qualifying minority interest) in accordance with Table 22. For example, if a banking organization has $10 of non-qualifying minority interest that previously qualified as tier 1 capital, it would be allowed to include $10 in its tier 1 capital during calendar year 2013, $8 during calendar year 2014, $6 during calendar year 2015, $4 during calendar year 2016, $2 during calendar year 2017 and $0 starting in January 1, 2018. TABLE 22—PERCENTAGE OF THE AMOUNT OF SURPLUS OR NON-QUALIFYING MINORITY INTEREST INCLUDABLE IN REGULATORY CAPITAL DURING TRANSITION PERIOD Percentage of the amount of surplus or non-qualifying minority interest that can be included in regulatory capital during the transition period Transition period Calendar Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year year 2013 2014 2015 2015 2016 2017 2018 ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... ................................................................................................................................... and thereafter ........................................................................................................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Transition Provisions for Standardized Approach NPR In addition, under the Standardized Approach NPR, beginning on January 1, 2015, a banking organization would be required to calculate risk-weighted assets using the proposed new approaches described in that NPR. The Standardized Approach NPR proposes that until then, the banking organization may calculate risk-weighted assets using the current methodologies unless it decides to early adopt the proposed changes. Notwithstanding the transition provisions in the Standardized Approach NPR, the banking organization would be subject to the transition provisions described in this Basel III NPR. Question 36: The agencies solicit comments on the transition arrangements outlined previously. In particular, what specific regulatory reporting burden or complexities would result from the application of the transition arrangements described in this section of the preamble, and what specific alternatives exist to deal with such burden or complexity while still adhering to the general transitional provisions required under the DoddFrank Act? Question 37: What are the pros and cons of a potentially stricter (but less complex) alternative transitions approach for the regulatory adjustments and deductions outlined in this section C under which banking organizations would be required to (1) apply all the regulatory adjustments and deductions currently applicable to tier 1 capital under the general risk-based capital VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 rules to common equity tier 1 capital from January 1, 2013 through December 31, 2015; and (2) fully apply all the regulatory adjustments and deductions proposed in section 22 of the proposed rule starting on January 1, 2016? Please provide data to support your views. E. Leverage Ratio The agencies are proposing to apply the supplementary leverage ratio beginning in 2018. However, beginning on January 1, 2015, advanced approaches banking organizations would be required to calculate and report the supplementary leverage ratio using the proposed definition of tier 1 capital and total exposure measure. Question 38: The agencies solicit comment on the proposed transition arrangements for the supplementary leverage ratio. In particular, what specific challenges do banking organizations anticipate with regard to the proposed arrangements and what specific alternative arrangements would address these challenges? VI. Additional OCC Technical Amendments In addition to the changes described above, the OCC is proposing to redesignate subpart C, Establishment of Minimum Capital Ratios for an Individual Bank, subpart D, Enforcement, and subpart E, Issuance of a Directive, as subparts H, I, and J, respectively. The OCC is also proposing to redesignate section 3.100, Capital and Surplus, as subpart K, Capital and Surplus. The OCC is carrying over redesignated subpart K, which includes definitions of the terms ‘‘capital’’ and PO 00000 Frm 00042 Fmt 4701 Sfmt 4702 100 80 60 60 40 20 0 ‘‘surplus’’ and related definitions that are used for determining statutory limits applicable to national banks that are based on capital and surplus. The agencies have systematically adopted a definition of capital and surplus that is based on tier 1 and tier 2 capital. The OCC believes that the definitions in redesignated subpart K may no longer be necessary and is considering whether to delete these definitions in the final rule. Finally, as part of the integration of the rules governing national banks and federal savings associations, the OCC proposes to make part 3 applicable to federal savings associations, make other non-substantive, technical amendments, and rescind part 167, Capital. In the final rule, the OCC may need to make additional technical and conforming amendments to other OCC rules, such as § 5.46, subordinated debt, which contains cross references to Part 3 that we propose to change pursuant to this rule. Cross references to appendices A, B, or C will also need to be amended because we propose to replace those appendices with subparts A through H. Question 39: The OCC requests comment on all aspects of these proposed changes, but is specifically interested in whether it is necessary to retain the definitions of capital and surplus and related terms in redesignated subpart K. VII. Abbreviations ABCP Asset-Backed Commercial Paper ABS Asset Backed Security AD.C. Acquisition, Development, or Construction AFS Available For Sale E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules AOCI Accumulated Other Comprehensive Income BCBS Basel Committee on Banking Supervision BHC Bank Holding Company BIS Bank for International Settlements CAMELS Capital Adequacy, Asset Quality, Management, Earnings, Liquidity, and Sensitivity to Market Risk CCF Credit Conversion Factor CCP Central Counterparty CD.C. Community Development Corporation CDFI Community Development Financial Institution CDO Collateralized Debt Obligation CDS Credit Default Swap CDSind Index Credit Default Swap CEIO Credit-Enhancing Interest-Only Strip CF Conversion Factor CFR Code of Federal Regulations CFTC Commodity Futures Trading Commission CMBS Commercial Mortgage Backed Security CPSS Committee on Payment and Settlement Systems CRC Country Risk Classifications CRAM Country Risk Assessment Model CRM Credit Risk Mitigation CUSIP Committee on Uniform Securities Identification Procedures D.C.O Derivatives Clearing Organizations DFA Dodd-Frank Act DI Depository Institution DPC Debts Previously Contracted DTA Deferred Tax Asset DTL Deferred Tax Liability DVA Debit Valuation Adjustment DvP Delivery-versus-Payment E Measure of Effectiveness EAD Exposure at Default ECL Expected Credit Loss EE Expected Exposure E.O. Executive Order EPE Expected Positive Exposure FASB Financial Accounting Standards Board FDIC Federal Deposit Insurance Corporation FFIEC Federal Financial Institutions Examination Council FHLMC Federal Home Loan Mortgage Corporation FMU Financial Market Utility FNMA Federal National Mortgage Association FR Federal Register GAAP Generally Accepted Accounting Principles GDP Gross Domestic Product GLBA Gramm-Leach-Bliley Act GSE Government-Sponsored Entity HAMP Home Affordable Mortgage Program HELOC Home Equity Line of Credit HOLA Home Owners’ Loan Act HVCRE High-Volatility Commercial Real Estate IFRS International Reporting Standards IMM Internal Models Methodology I/O Interest-Only IOSCO International Organization of Securities Commissions LTV Loan-to-Value Ratio M Effective Maturity MDB Multilateral Development Banks VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 MSA Mortgage Servicing Assets NGR Net-to-Gross Ratio NPR Notice of Proposed Rulemaking NRSRO Nationally Recognized Statistical Rating Organization OCC Office of the Comptroller of the Currency OECD Organization for Economic Cooperation and Development OIRA Office of Information and Regulatory Affairs OMB Office of Management and Budget OTC Over-the-Counter PCA Prompt Corrective Action PCCR Purchased Credit Card Receivables PFE Potential Future Exposure PMI Private Mortgage Insurance PSE Public Sector Entities PvP Payment-versus-Payment QCCP Qualifying Central Counterparty RBA Ratings-Based Approach REIT Real Estate Investment Trust RFA Regulatory Flexibility Act RMBS Residential Mortgage Backed Security RTCRRI Act Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991 RVC Ratio of Value Change RWA Risk-Weighted Asset SEC Securities and Exchange Commission SFA Supervisory Formula Approach SFT Securities Financing Transactions SBLF Small Business Lending Facility SLHC Savings and Loan Holding Company SPE Special Purpose Entity SPV Special Purpose Vehicle SR Supervision and Regulation Letter SRWA Simple Risk-Weight Approach SSFA Simplified Supervisory Formula Approach UMRA Unfunded Mandates Reform Act of 1995 U.S. United States U.S.C. United States Code VaR Value-at-Risk VIII. Regulatory Flexibility Act The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA) requires an agency to provide an initial regulatory flexibility analysis with a proposed rule or to certify that the rule will not have a significant economic impact on a substantial number of small entities (defined for purposes of the RFA to include banking entities with assets less than or equal to $175 million) and publish its certification and a short, explanatory statement in the Federal Register along with the proposed rule. The agencies are separately publishing initial regulatory flexibility analyses for the proposals as set forth in this NPR. Board A. Statement of the Objectives of the Proposal; Legal Basis As discussed previously in the Supplementary Information, the Board is proposing in this NPR to revise its capital requirements to promote safe PO 00000 Frm 00043 Fmt 4701 Sfmt 4702 52833 and sound banking practices, implement Basel III, and codify its capital requirements. The proposals also satisfy certain requirements under the Dodd-Frank Act by imposing new or revised minimum capital requirements on certain depository institution holding companies.90 Under section 38(c)(1) of the Federal Deposit Insurance Act, the agencies may prescribe capital standards for depository institutions that they regulate.91 In addition, among other authorities, the Board may establish capital requirements for state member banks under the Federal Reserve Act,92 for state member banks and bank holding companies under the International Lending Supervision Act and Bank Holding Company Act,93 and for savings and loan holding companies under the Home Owners Loan Act.94 B. Small Entities Potentially Affected by the Proposal Under regulations issued by the Small Business Administration,95 a small entity includes a depository institution or bank holding company with total assets of $175 million or less (a small banking organization). As of March 31, 2012 there were 373 small state member banks. As of December 31, 2011, there were approximately 128 small savings and loan holding companies and 2,385 small bank holding companies.96 The proposal would not apply to small bank holding companies that are not engaged in significant nonbanking activities, do not conduct significant offbalance sheet activities, and do not have a material amount of debt or equity securities outstanding that are registered with the SEC. These small bank holding companies remain subject to the Board’s Small Bank Holding Company Policy Statement (Policy Statement).97 Small state member banks and small savings and loan holding companies (covered small banking organizations) would be subject to the proposals in this NPR. 90 See 12 U.S.C. 5371. 12 U.S.C. 1831o(c)(1). 92 See 12 CFR 208.43. 93 See 12 U.S.C. 3907; 12 U.S.C. 1844. 94 See 12 U.S.C. 1467a(g)(1). 95 See 13 CFR 121.201. 96 The December 31, 2011 data are the most recent available data on small savings and loan holding companies and small bank holding companies. 97 See 12 CFR part 225, appendix C. Section 171 of the Dodd-Frank provides an exemption from its requirements for bank holding companies subject to the Policy Statement (as in effect on May 19, 2010). Section 171 does not provide a similar exemption for small savings and loan holding companies and they are therefore subject to the proposals. 12 U.S.C. 5371(b)(5)(C). 91 See E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52834 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules C. Impact on Covered Small Banking Organizations The proposals may impact covered small banking organizations in several ways. The proposals would affect covered small banking organizations’ regulatory capital requirements. They would change the qualifying criteria for regulatory capital, including required deductions and adjustments, and modify the risk weight treatment for some exposures. They also would require covered small banking organizations to meet new minimum common equity tier 1 to risk-weighted assets ratio of 4.5 percent and an increased minimum tier 1 capital to risk-weighted assets risk-based capital ratio of 6 percent. Under the proposals, all banking organizations would remain subject to a 4 percent minimum tier 1 leverage ratio.98 In addition, as described above, the proposals would impose limitations on capital distributions and discretionary bonus payments for covered small banking organizations that do not hold a buffer of common equity tier 1 capital above the minimum ratios. As a result of these new requirements, some covered small banking organizations may have to alter their capital structure (including by raising new capital or increasing retention of earnings) in order to achieve compliance. Most small state member banks already hold capital in excess of the proposed minimum risk-based regulatory ratios. Therefore, the proposed requirements are not expected to significantly impact the capital structure of most covered small state member banks. Comparing the capital requirements proposed in this NPR and the Standardized Approach NPR on a fully phased-in basis to minimum requirements of the current rules, the capital ratios of approximately 1–2 percent of small state member banks would fall below at least one of the proposed minimum risk-based capital requirements. Thus, the Board believes that the proposals in this NPR and the Standardized NPR would affect an insubstantial number of small state member banks. Because the Board has not fully implemented reporting requirements for savings and loan holding companies, it is unable to determine the impact of the 98 Banking organizations subject to the advanced approaches rules also would be required in 2018 to achieve a minimum tier 1 capital to total leverage exposure ratio (the supplementary leverage ratio) of 3 percent. Advanced approaches banking organizations should refer to section 10 of subpart B of the proposed rule and section II.B of the preamble for a more detailed discussion of the applicable minimum capital ratios. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 proposed requirements on small savings and loan holding companies. The Board seeks comment on the potential impact of the proposed requirements on small savings and loan holding companies. Covered small banking organizations that would have to raise additional capital to comply with the requirements of the proposals may incur certain costs, including costs associated with issuance of regulatory capital instruments. The Board has sought to minimize the burden of raising additional capital by providing for transitional arrangements that phase-in the new capital requirements over several years, allowing banking organizations time to accumulate additional capital through retained earnings as well as raising capital in the market. While the proposals would establish a narrower definition of capital, a minimum common equity tier 1 capital ratio and a minimum tier 1 capital ratio that is higher than under the general risk-based capital rules, the majority of capital instruments currently held by small covered banking organizations under existing capital rules, such as common stock and noncumulative perpetual preferred stock, would remain eligible as regulatory capital instruments under the proposed requirements. As discussed above, the proposals would modify criteria for regulatory capital, deductions and adjustments to capital, and risk weights for exposures, as well as calculation of the leverage ratio. Accordingly, covered small banking organizations would be required to change their internal reporting processes to comply with these changes. These changes may require some additional personnel training and expenses related to new systems (or modification of existing systems) for calculating regulatory capital ratios. For small savings and loan holding companies, the compliance burdens described above may be greater than for those of other covered small banking organizations. Small savings and loan holding companies previously were not subject to regulatory capital requirements and reporting requirements tied regulatory capital requirements. Small savings and loan holding companies may therefore need to invest additional resources in establishing internal systems (including purchasing software or hiring personnel) or raising capital to come into compliance with the proposed requirements. PO 00000 Frm 00044 Fmt 4701 Sfmt 4702 D. Transitional Arrangements To Ease Compliance Burden For those covered small banking organizations that would not immediately meet the proposed minimum requirements, this NPR provides transitional arrangements for banking organizations to make adjustments and to come into compliance. Small covered banking organizations would be required to meet the proposed minimum capital ratio requirements beginning on January 1, 2013 thorough to December 31, 2014. On January 1, 2015, small covered banking organizations would be required to comply with the proposed minimum capital ratio requirements. E. Identification of Duplicative, Overlapping, or Conflicting Federal Rules The Board is unaware of any duplicative, overlapping, or conflicting federal rules. As noted above, the Board anticipates issuing a separate proposal to implement reporting requirements that are tied to (but do not overlap or duplicate) the proposed requirements. The Board seeks comments and information regarding any such rules that are duplicative, overlapping, or otherwise in conflict with the proposed requirements. F. Discussion of Significant Alternatives The Board has sought to incorporate flexibility and provide alternative treatments in this NPR and the Standardized NPR to lessen burden and complexity for smaller banking organizations wherever possible, consistent with safety and soundness and applicable law, including the DoddFrank Act. These alternatives and flexibility features include the following: • Covered small banking organizations would not be subject to the proposed enhanced disclosure requirements. • Covered small banking organizations would not be subject to possible increases in the capital conservation buffer through the countercyclical buffer. • Covered small banking organizations would not be subject to the new supplementary leverage ratio. • Covered small institutions that have issued capital instruments to the U.S. Treasury through the Small Business Lending Fund (a program for banking organizations with less than $10 billion in consolidated assets) or under the Emergency Economic Stabilization Act of 2008 prior to October 4, 2010, would be able to continue to include those E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules instruments in tier 1 or tier 2 capital (as applicable) even if not all criteria for inclusion under the proposed requirements are met. • Covered small banking organizations that issued capital instruments that could no longer be included in tier 1 capital or tier 2 capital under the proposed requirements would have a longer transition period for removing the instruments from tier 1 or tier 2 capital (as applicable). The Board welcomes comment on any significant alternatives to the proposed requirements applicable to covered small banking organizations that would minimize their impact on those entities, as well as on all other aspects of its analysis. A final regulatory flexibility analysis will be conducted after consideration of comments received during the public comment period. OCC In accordance with section 3(a) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), the OCC is publishing this summary of its Initial Regulatory Flexibility Analysis (IRFA) for this NPR. The RFA requires an agency to publish in the Federal Register its IRFA or a summary of its IRFA at the time of the publication of its general notice of proposed rulemaking 99 or to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.100 For its IRFA, the OCC analyzed the potential economic impact of this NPR on the small entities that it regulates. The OCC welcomes comment on all aspects of the summary of its IRFA. A final regulatory flexibility analysis will be conducted after consideration of comments received during the public comment period. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 A. Reasons Why the Proposed Rule Is Being Considered by the Agencies; Statement of the Objectives of the Proposed Rule; and Legal Basis As discussed in the Supplementary Information section above, the agencies are proposing to revise their capital requirements to promote safe and sound banking practices, implement Basel III, and harmonize capital requirements across charter type. Federal law authorizes each of the agencies to prescribe capital standards for the banking organizations that it regulates.101 99 5 U.S.C. 603(a). U.S.C. 605(b). 101 See, e.g., 12 U.S.C. 1467a(g)(1); 12 U.S.C. 1831o(c)(1); 12 U.S.C. 1844; 12 U.S.C. 3907; and 12 U.S.C. 5371. 100 5 VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 B. Small Entities Affected by the Proposal Under regulations issued by the Small Business Administration,102 a small entity includes a depository institution or bank holding company with total assets of $175 million or less (a small banking organization). As of March 31, 2012, there were approximately 599 small national banks and 284 small federally chartered savings associations. C. Projected Reporting, Recordkeeping, and Other Compliance Requirements This NPR includes changes to the general risk-based capital requirements that affect small banking organizations. Under this NPR, the changes to minimum capital requirements that would impact small national banks and federal savings associations include a more conservative definition of regulatory capital, a new common equity tier 1 capital ratio, a higher minimum tier 1 capital ratio, new thresholds for prompt corrective action purposes, and a new capital conservation buffer. To estimate the impact of this NPR on national banks’ and federal savings associations’ capital needs, the OCC estimated the amount of capital the banks will need to raise to meet the new minimum standards relative to the amount of capital they currently hold. To estimate new capital ratios and requirements, the OCC used currently available data from banks’ quarterly Consolidated Report of Condition and Income (Call Reports) to approximate capital under the proposed rule, which shows that most banks have raised their capital levels well above the existing minimum requirements. After comparing existing levels with the proposed new requirements, the OCC has determined that 28 small institutions that it regulates would fall short of the proposed increased capital requirements. Together, those institutions would need to raise approximately $82 million in regulatory capital to meet the proposed minimum requirements. The OCC estimates that the cost of lost tax benefits associated with increasing total capital by $82 million will be approximately $0.5 million per year. Averaged across the 28 affected institutions, the cost is approximately $18,000 per institution per year. To determine if a proposed rule has a significant economic impact on small entities, we compared the estimated annual cost with annual noninterest expense and annual salaries and employee benefits for each small entity. 102 See PO 00000 13 CFR 121.201. Frm 00045 Fmt 4701 Sfmt 4702 52835 Based on this analysis, the OCC has concluded for purposes of this IRFA that the changes described in this NPR, when considered without regard to other changes to the capital requirements that the agencies simultaneously are proposing, would not result in a significant economic impact on a substantial number of small entities. However, as discussed in the Supplementary Information section above, the changes proposed in this NPR also should be considered together with changes proposed in the separate Standardized Approach NPR also published in today’s Federal Register. The changes described in the Standardized NPR include: 1. Changing the denominator of the risk-based capital ratios by revising the asset risk weights; 2. Revising the treatment of counterparty credit risk; 3. Replacing references to credit ratings with alternative measures of creditworthiness; 4. Providing more comprehensive recognition of collateral and guarantees; and 5. Providing a more favorable capital treatment for transactions cleared through qualifying central counterparties. These changes are designed to enhance the risk-sensitivity of the calculation of risk-weighted assets. Therefore, capital requirements may go down for some assets and up for others. For those assets with a higher risk weight under this NPR, however, that increase may be large in some instances, e.g., requiring the equivalent of a dollarfor-dollar capital charge for some securitization exposures. The Basel Committee on Banking Supervision has been conducting periodic reviews of the potential quantitative impact of the Basel III framework.103 Although these reviews monitor the impact of implementing the Basel III framework rather than the proposed rule, the OCC is using estimates consistent with the Basel Committee’s analysis, including a conservative estimate of a 20 percent increase in risk-weighted assets, to gauge the impact of the Standardized Approach NPR on risk-weighted assets. Using this assumption, the OCC estimates that a total of 56 small national banks and federally chartered savings associations will need to raise additional capital to meet their regulatory minimums. The OCC 103 See, ‘‘Update on Basel III Implementation Monitoring,’’ Quantitative Impact Study Working Group, (January 28, 2012). E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52836 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules estimates that this total projected shortfall will be $143 million and that the cost of lost tax benefits associated with increasing total capital by $143 million will be approximately $0.8 million per year. Averaged across the 56 affected institutions, the cost is approximately $14,000 per institution per year. To comply with the proposed rules in the Standardized Approach NPR, covered small banking organizations would be required to change their internal reporting processes. These changes would require some additional personnel training and expenses related to new systems (or modification of existing systems) for calculating regulatory capital ratios. Additionally, covered small banking organizations that hold certain exposures would be required to obtain additional information under the proposed rules in order to determine the applicable risk weights. Covered small banking organizations that hold exposures to sovereign entities other than the United States, foreign depository institutions, or foreign public sector entities would have to acquire Country Risk Classification ratings produced by the OECD to determine the applicable risk weights. Covered small banking organizations that hold residential mortgage exposures would need to have and maintain information about certain underwriting features of the mortgage as well as the LTV ratio in order to determine the applicable risk weight. Generally, covered small banking organizations that hold securitization exposures would need to obtain sufficient information about the underlying exposures to satisfy due diligence requirements and apply either the simplified supervisory formula or the gross-up approach described in section l.43 of the Standardized Approach NPR to calculate the appropriate risk weight, or be required to assign a 1,250 percent risk weight to the exposure. Covered small banking organizations typically do not hold significant exposures to foreign entities or securitization exposures, and the agencies expect any additional burden related to calculating risk weights for these exposures, or holding capital against these exposures, would be relatively modest. The OCC estimates that, for small national banks and federal savings associations, the cost of implementing the alternative measures of creditworthiness will be approximately $36,125 per institution. Some covered small banking organizations may hold significant residential mortgage exposures. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 However, if the small banking organization originated the exposure, it should have sufficient information to determine the applicable risk weight under the proposed rule. If the small banking organization acquired the exposure from another institution, the information it would need to determine the applicable risk weight is consistent with information that it should normally collect for portfolio monitoring purposes and internal risk management. Covered small banking organizations would not be subject to the disclosure requirements in subpart D of the proposed rule. However, the agencies expect to modify regulatory reporting requirements that apply to covered small banking organizations to reflect the changes made to the agencies’ capital requirements in the proposed rules. The agencies expect to propose these changes to the relevant reporting forms in a separate notice. To determine if a proposed rule has a significant economic impact on small entities the OCC compared the estimated annual cost with annual noninterest expense and annual salaries and employee benefits for each small entity. If the estimated annual cost was greater than or equal to 2.5 percent of total noninterest expense or 5 percent of annual salaries and employee benefits the OCC classified the impact as significant. As noted above, the OCC has concluded for purposes of this IRFA that the proposed rules in this NPR, when considered without regard to changes in the Standardized NPR, would not exceed these thresholds and therefore would not result in a significant economic impact on a substantial number of small entities. However, the OCC has concluded that the proposed rules in the Standardized Approach NPR would have a significant impact on a substantial number of small entities. The OCC estimates that together, the changes proposed in this NPR and the Standardized Approach NPR will exceed these thresholds for 500 small national banks and 253 small federally chartered private savings institutions. Accordingly, when considered together, this NPR and the Standardized Approach NPR appear to have a significant economic impact on a substantial number of small entities. D. Identification of Duplicative, Overlapping, or Conflicting Federal Rules The OCC is unaware of any duplicative, overlapping, or conflicting federal rules. As noted previously, the OCC anticipates issuing a separate proposal to implement reporting PO 00000 Frm 00046 Fmt 4701 Sfmt 4702 requirements that are tied to (but do not overlap or duplicate) the requirements of the proposed rules. The OCC seeks comments and information regarding any such federal rules that are duplicative, overlapping, or otherwise in conflict with the proposed rule. E. Discussion of Significant Alternatives to the Proposed Rule The agencies have sought to incorporate flexibility into the proposed rule and lessen burden and complexity for smaller banking organizations wherever possible, consistent with safety and soundness and applicable law, including the Dodd-Frank Act. The agencies are requesting comment on potential options for simplifying the rule and reducing burden, including whether to permit certain small banking organizations to continue using portions of the current general risk-based capital rules to calculate risk-weighted assets. Additionally, the agencies proposed the following alternatives and flexibility features: • Covered small banking organizations are not subject to the enhanced disclosure requirements of the proposed rules. • Covered small banking organizations would continue to apply a 100 percent risk weight to corporate exposures (as described in section l.32 of the Standardized Approach NPR). • Covered small banking organizations may choose to apply the simpler gross-up method for securitization exposures rather than the Simplified Supervisory Formula Approach (SSFA) (as described in section l.43 of the Standardized Approach NPR). • The proposed rule offers covered small banking organizations a choice between a simpler and more complex methods of risk weighting equity exposures to investment funds (as described in section l.53 of the Standardized Approach NPR). The agencies welcome comment on any significant alternatives to the proposed rules applicable to covered small banking organizations that would minimize their impact on those entities. FDIC Regulatory Flexibility Act Summary of the FDIC’s Initial Regulatory Flexibility Analysis (IRFA) In accordance with section 3(a) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), the FDIC is publishing this summary of the IRFA for this NPR. The RFA requires an agency to publish in the Federal Register an IRFA or a summary of its IRFA at the time of the E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules publication of its general notice of proposed rulemaking 104 or to certify that the proposed rule will not have a significant economic impact on a substantial number of small entities.105 For purposes of this IRFA, the FDIC analyzed the potential economic impact of this NPR on the small entities that it regulates. The FDIC welcomes comment on all aspects of the summary of its IRFA. A final regulatory flexibility analysis will be conducted after consideration of comments received during the public comment period. A. Reasons Why the Proposed Rule Is Being Considered by the Agencies; Statement of the Objectives of the Proposed Rule; and Legal Basis As discussed in the Supplementary Information section above, the agencies are proposing to revise their capital requirements to promote safe and sound banking practices, implement Basel III and certain aspects of the Dodd-Frank Act, and harmonize capital requirements across charter type. Federal law authorizes each of the agencies to prescribe capital standards for the banking organizations that it regulates.106 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 B. Small Entities Affected by the Proposal Under regulations issued by the Small Business Administration,107 a small entity includes a depository institution or bank holding company with total assets of $175 million or less (a small banking organization). As of March 31, 2012, there were approximately 2,433 small state nonmember banks, 115 small state savings banks, and 45 small state savings associations (collectively, small banks and savings associations). C. Projected Reporting, Recordkeeping, and Other Compliance Requirements This NPR includes changes to the general risk-based capital requirements that affect small banking organizations. Under this NPR, the changes to minimum capital requirements that would impact small banks and savings associations include a more conservative definition of regulatory capital, a new common equity tier 1 capital ratio, a higher minimum tier 1 capital ratio, new thresholds for prompt corrective action purposes, and a new capital conservation buffer. To estimate the impact of this NPR on the capital 104 5 U.S.C. 603(a). U.S.C. 605(b). 106 See, e.g., 12 U.S.C. 1467a(g)(1); 12 U.S.C. 1831o(c)(1); 12 U.S.C. 1844; 12 U.S.C. 3907; and 12 U.S.C. 5371. 107 See 13 CFR 121.201. 105 5 VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 needs of small banks and savings associations, the FDIC estimated the amount of capital such institutions will need to raise to meet the new minimum standards relative to the amount of capital they currently hold. To estimate new capital ratios and requirements, the FDIC used currently available data from the quarterly Consolidated Report of Condition and Income (Call Reports) filed by small banks and savings associations to approximate capital under the proposed rule. The Call Reports show that most small banks and savings associations have raised their capital to levels well above the existing minimum requirements. After comparing existing levels with the proposed new requirements, the FDIC has determined that 62 small banks and savings associations that it regulates would fall short of the proposed increased capital requirements. Together, those institutions would need to raise approximately $164 million in regulatory capital to meet the proposed minimum requirements. The FDIC estimates that the cost of lost tax benefits associated with increasing total capital by $164 million will be approximately $0.9 million per year. Averaged across the 62 affected institutions, the cost is approximately $15,000 per institution per year. To determine if the proposed rule has a significant economic impact on small entities we compared the estimated annual cost with annual noninterest expense and annual salaries and employee benefits for each small entity. Based on this analysis, the FDIC has concluded for purposes of this IRFA that the changes described in this NPR, when considered without regard to other changes to the capital requirements that the agencies simultaneously are proposing, would not result in a significant economic impact on a substantial number of small entities. However, as discussed in the Supplementary Information section above, the changes proposed in this NPR also should be considered together with changes proposed in the separate Standardized Approach NPR also published in today’s Federal Register. The changes described in the Standardized NPR include: 1. Changing the denominator of the risk-based capital ratios by revising the asset risk weights; 2. Revising the treatment of counterparty credit risk; 3. Replacing references to credit ratings with alternative measures of creditworthiness; PO 00000 Frm 00047 Fmt 4701 Sfmt 4702 52837 4. Providing more comprehensive recognition of collateral and guarantees; and 5. Providing a more favorable capital treatment for transactions cleared through qualifying central counterparties. These changes are designed to enhance the risk-sensitivity of the calculation of risk-weighted assets. Therefore, capital requirements may go down for some assets and up for others. For those assets with a higher risk weight under this NPR, however, that increase may be large in some instances, for example, the equivalent of a dollarfor-dollar capital charge for some securitization exposures. In order to estimate the impact of the Standardized Approach NPR on small banks and savings associations, the FDIC used currently available data from the quarterly Consolidated Report of Condition and Income (Call Reports) filed by small banks and savings associations to approximate the change in capital under the proposed rule. After comparing the existing risk-based capital rules with the proposed rule, the FDIC estimates that risk-weighted assets may increase by 10 percent under the proposed rule. Using this assumption, the FDIC estimates that a total of 76 small national banks and federally chartered savings associations will need to raise additional capital to meet their regulatory minimums. The FDIC estimates that this total projected shortfall will be $34 million and that the cost of lost tax benefits associated with increasing total capital by $34 million will be approximately $0.2 million per year. Averaged across the 76 affected institutions, the cost is approximately $2,500 per institution per year. To comply with the proposed rules in the Standardized Approach NPR, covered small banking organizations would be required to change their internal reporting processes. These changes would require some additional personnel training and expenses related to new systems (or modification of existing systems) for calculating regulatory capital ratios. Additionally, small banks and savings associations that hold certain exposures would be required to obtain additional information under the proposed rules in order to determine the applicable risk weights. For example, small banks and savings associations that hold exposures to sovereign entities other than the United States, foreign depository institutions, or foreign public sector entities would have to acquire Country Risk Classification ratings produced by the OECD to determine the applicable risk weights. Small banks and savings E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52838 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules associations that hold residential mortgage exposures would need to have and maintain information about certain underwriting features of the mortgage as well as the LTV ratio to determine the applicable risk weight. Generally, small banks and savings associations that hold securitization exposures would need to obtain sufficient information about the underlying exposures to satisfy due diligence requirements and apply either the simplified supervisory formula or the gross-up approach described in section l.43 of the Standardized Approach NPR to calculate the appropriate risk weight, or be required to assign a 1,250 percent risk weight to the exposure. Small banks and savings associations typically do not hold significant exposures to foreign entities or securitization exposures, and the agencies expect any additional burden related to calculating risk weights for these exposures, or holding capital against these exposures, would be relatively modest. The FDIC estimates that, for small banks and savings associations, the cost of implementing the alternative measures of creditworthiness will be approximately $39,000 per institution. Small banks and savings associations may hold significant residential mortgage exposures. If the institution originated the exposure, it should have sufficient information to determine the applicable risk weight under the proposed rule. However, if the exposure is acquired from another institution, the information that would be needed to determine the applicable risk weight is consistent with information that should normally be collected for portfolio monitoring purposes and internal risk management. Small banks and savings associations would not be subject to the disclosure requirements in subpart D of the proposed rule. However, the agencies expect to modify regulatory reporting requirements that apply to such institutions to reflect the changes made to the agencies’ capital requirements in the proposed rules. The agencies expect to propose these changes to the relevant reporting forms in a separate notice. To determine if a proposed rule has a significant economic impact on small entities the FDIC compared the estimated annual cost with annual noninterest expense and annual salaries and employee benefits for each small bank and savings association. If the estimated annual cost was greater than or equal to 2.5 percent of total noninterest expense or 5 percent of annual salaries and employee benefits the FDIC classified the impact as VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 significant. As noted above, the FDIC has concluded for purposes of this IRFA that the proposed rules in this NPR, when considered without regard to changes in the Standardized NPR, would not exceed these thresholds and therefore would not result in a significant economic impact on a substantial number of small banks and savings associations. However, the FDIC has concluded that the proposed rules in the Standardized Approach NPR would have a significant impact on a substantial number of small banks and savings associations. The FDIC estimates that together, the changes proposed in this NPR and the Standardized Approach NPR will exceed these thresholds for 2,413 small state nonmember banks, 114 small savings banks, and 45 small savings associations. Accordingly, when considered together, this NPR and the Standardized Approach NPR appear to have a significant economic impact on a substantial number of small entities. D. Identification of Duplicative, Overlapping, or Conflicting Federal Rules The FDIC is unaware of any duplicative, overlapping, or conflicting federal rules. As noted previously, the FDIC anticipates issuing a separate proposal to implement reporting requirements that are tied to (but do not overlap or duplicate) the requirements of the proposed rules. The FDIC seeks comments and information regarding any such federal rules that are duplicative, overlapping, or otherwise in conflict with the proposed rule. E. Discussion of Significant Alternatives to the Proposed Rule The agencies have sought to incorporate flexibility into the proposed rule and lessen burden and complexity for small bank and savings associations wherever possible, consistent with safety and soundness and applicable law, including the Dodd-Frank Act. The agencies are requesting comment on potential options for simplifying the rule and reducing burden, including whether to permit certain small banking organizations to continue using portions of the current general risk-based capital rules to calculate risk-weighted assets. Additionally, the agencies proposed the following alternatives and flexibility features: • Small banks and savings associations are not subject to the enhanced disclosure requirements of the proposed rules. • Small banks and savings associations would continue to apply a 100 percent risk weight to corporate PO 00000 Frm 00048 Fmt 4701 Sfmt 4702 exposures (as described in section l.32 of the Standardized Approach NPR). • Small banks and savings associations may choose to apply the simpler gross-up method for securitization exposures rather than the SSFA (as described in section l.43 of the Standardized Approach NPR). • The proposed rule offers small banks and savings associations a choice between a simpler and more complex methods of risk weighting equity exposures to investment funds (as described in section l.53 of the Standardized Approach NPR). The agencies welcome comment on any significant alternatives to the proposed rules applicable to small banks and savings associations that would minimize their impact on those entities. IX. Paperwork Reduction Act Paperwork Reduction Act A. Request for Comment on Proposed Information Collection In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995, the agencies may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The agencies are requesting comment on a proposed information collection. The information collection requirements contained in this joint notice of proposed rulemaking (NPR) have been submitted by the OCC and FDIC to OMB for review under the PRA, under OMB Control Nos. 1557–0234 and 3064–0153. In accordance with the PRA (44 U.S.C. 3506; 5 CFR part 1320, Appendix A.1), the Board has reviewed the NPR under the authority delegated by OMB. The Board’s OMB Control No. is 7100–0313. The requirements are found in §§ l.2. The agencies have published two other NPRs in this issue of the Federal Register. Please see the NPRs entitled ‘‘Regulatory Capital Rules: Standardized Approach for Risk-Weighted Assets; Market Discipline and Disclosure Requirements’’ and ‘‘Regulatory Capital Rules: Advanced Approaches Riskbased Capital Rules; Market Risk Capital Rule.’’ While the three NPRs together comprise an integrated capital framework, the PRA burden has been divided among the three NPRs and a PRA statement has been provided in each. Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the Agencies’ functions, E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules including whether the information has practical utility; (b) The accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) Ways to enhance the quality, utility, and clarity of the information to be collected; (d) Ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) Estimates of capital or start up costs and costs of operation, maintenance, and purchase of services to provide information. All comments will become a matter of public record. Comments should be addressed to: OCC: Communications Division, Office of the Comptroller of the Currency, Public Information Room, Mail Stop 1–5, Attention: 1557–0234, 250 E Street SW., Washington, DC 20219. In addition, comments may be sent by fax to (202) 874–4448, or by electronic mail to regs.comments@occ.treas.gov. You can inspect and photocopy the comments at the OCC’s Public Information Room, 250 E Street, SW., Washington, DC 20219. You can make an appointment to inspect the comments by calling (202) 874–5043. Board: You may submit comments, identified by R–1442, by any of the following methods: • Agency Web Site: http:// www.federalreserve.gov. Follow the instructions for submitting comments on the http://www.federalreserve.gov/ generalinfo/foia/ProposedRegs.cfm. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: regs.comments@federalreserve.gov. Include docket number in the subject line of the message. • Fax: 202–452–3819 or 202–452– 3102. • Mail: Jennifer J. Johnson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551. All public comments are available from the Board’s Web site at http://www.federalreserve.gov/ generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, your comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper in Room MP– 500 of the Board’s Martin Building (20th VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 and C Streets NW.) between 9 a.m. and 5 p.m. on weekdays. FDIC: You may submit written comments, which should refer to RIN 3064–AD95 Implementation of Basel III 0153, by any of the following methods: • Agency Web Site: http:// www.fdic.gov/regulations/laws/federal/ propose.html. Follow the instructions for submitting comments on the FDIC Web site. • Federal eRulemaking Portal: http:// www.regulations.gov. Follow the instructions for submitting comments. • Email: Comments@FDIC.gov. • Mail: Robert E. Feldman, Executive Secretary, Attention: Comments, FDIC, 550 17th Street NW., Washington, DC 20429. • Hand Delivery/Courier: Guard station at the rear of the 550 17th Street Building (located on F Street) on business days between 7 a.m. and 5 p.m. Public Inspection: All comments received will be posted without change to http://www.fdic.gov/regulations/laws/ federal/propose/html including any personal information provided. Comments may be inspected at the FDIC Public Information Center, Room 100, 801 17th Street NW., Washington, DC, between 9 a.m. and 4:30 p.m. on business days. B. Proposed Information Collection Title of Information Collection: Basel III. Frequency of Response: On occasion. Affected Public: OCC: National banks and federally chartered savings associations. Board: State member banks, bank holding companies, and savings and loan holding companies. FDIC: Insured state nonmember banks, state savings associations, and certain subsidiaries of these entities. Abstract: Section l.2 allows the use of a conservative estimate of the amount of a bank’s investment in the capital of unconsolidated financial institutions held through the index security with prior approval by the appropriate agency. It also provides for termination and close-out netting across multiple types of transactions or agreements if the bank obtains a written legal opinion verifying the validity and enforceability of the agreement under certain circumstances and maintains sufficient written documentation of this legal review. Estimated Burden: The burden estimates below exclude any regulatory reporting burden associated with changes to the Consolidated Reports of Income and Condition for banks (FFIEC 031 and FFIEC 041; OMB Nos. 7100– 0036, 3064–0052, 1557–0081), the PO 00000 Frm 00049 Fmt 4701 Sfmt 4702 52839 Financial Statements for Bank Holding Companies (FR Y–9; OMB No. 7100– 0128), and the Capital Assessments and Stress Testing information collection (FR Y–14A/Q/M; OMB No. 7100–0341). The agencies are still considering whether to revise these information collections or to implement a new information collection for the regulatory reporting requirements. In either case, a separate notice would be published for comment on the regulatory reporting requirements. OCC Estimated Number of Respondents: Independent national banks, 172; federally chartered savings banks, 603. Estimated Burden per Respondent: 16 hours. Total Estimated Annual Burden: 12,400 hours. Board Estimated Number of Respondents: SMBs, 831; BHCs, 933; SLHCs, 438. Estimated Burden per Respondent: 16 hours. Total Estimated Annual Burden: 35,232 hours. FDIC Estimated Number of Respondents: 4,571. Estimated Burden per Respondent: 16 hours. Total Estimated Annual Burden: 73,136 hours. X. Plain Language Section 722 of the Gramm-LeachBliley Act requires the Federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The agencies have sought to present the proposed rule in a simple and straightforward manner, and invite comment on the use of plain language. XI. OCC Unfunded Mandates Reform Act of 1995 Determinations Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532 et seq.) requires that an agency prepare a written statement before promulgating a rule that includes a Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector of $100 million or more (adjusted annually for inflation) in any one year. If a written statement is required, the UMRA (2 U.S.C. 1535) also requires an agency to identify and consider a reasonable number of regulatory alternatives before promulgating a rule and from those alternatives, either select the least E:\FR\FM\30AUP2.SGM 30AUP2 52840 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule, or provide a statement with the rule explaining why such an option was not chosen. Under this NPR, the changes to minimum capital requirements include a new common equity tier 1 capital ratio, a higher minimum tier 1 capital ratio, a supplementary leverage ratio for advanced approaches banks, new thresholds for prompt corrective action purposes, a new capital conservation buffer, and a new countercyclical capital buffer for advanced approaches banks. To estimate the impact of this NPR on bank capital needs, the OCC estimated the amount of capital banks will need to raise to meet the new minimum standards relative to the amount of capital they currently hold. To estimate new capital ratios and requirements, the OCC used currently available data from banks’ quarterly Consolidated Report of Condition and Income (Call Reports) to approximate capital under the proposed rule. Most banks have raised their capital levels well above the existing minimum requirements and, after comparing existing levels with the proposed new requirements, the OCC has determined that its proposed rule will not result in expenditures by State, local, and Tribal governments, or by the private sector, of $100 million or more. Accordingly, the UMRA does not require that a written statement accompany this NPR. Addendum 1: Summary of This NPR for Community Banking Organizations Overview The agencies are issuing a notice of proposed rulemaking (NPR, proposal, or proposed rule) to revise the general riskbased capital rules to incorporate certain revisions by the Basel Committee on Banking Supervision to the Basel capital framework (Basel III). The proposed rule would: • Revise the definition of regulatory capital components and related calculations; • Add a new regulatory capital component: common equity tier 1 capital; • Increase the minimum tier 1 capital ratio requirement; • Impose different limitations to qualifying minority interest in regulatory capital than those currently applied; • Incorporate the new and revised regulatory capital requirements into the Prompt Corrective Action (PCA) capital categories; • Implement a new capital conservation buffer framework that would limit payment of capital distributions and certain discretionary bonus payments to executive officers and key risk takers if the banking organization does not hold certain amounts of common equity tier 1 capital in addition to those needed to meet its minimum riskbased capital requirements; and • Provide for a transition period for several aspects of the proposed rule, including a phase-out period for certain non-qualifying capital instruments, the new minimum capital ratio requirements, the capital conservation buffer, and the regulatory capital adjustments and deductions. This addendum presents a summary of the proposed rule that is more relevant for smaller, non-complex banking organizations that are not subject to the market risk rule or the advanced approaches capital rule. The agencies intend for this addendum to act as a guide for these banking organizations, helping them to navigate the proposed rule and identify the changes most relevant to them. The addendum does not, however, by itself provide a complete understanding of the proposed rules and the agencies expect and encourage all institutions to review the proposed rule in its entirety. 1. Revisions to the Minimum Capital Requirements The NPR proposes definitions of common equity tier 1 capital, additional tier 1 capital, and total capital. These proposed definitions would alter the existing definition of capital by imposing, among other requirements, additional constraints on including minority interests, mortgage servicing assets (MSAs), deferred tax assets (DTAs) and certain investments in unconsolidated financial institutions in regulatory capital. In addition, the NPR would require that most regulatory capital deductions be made from common equity tier 1 capital. The NPR would also require that most of a banking organization’s accumulated other comprehensive income (AOCI) be included in regulatory capital. Under the NPR, a banking organization would maintain the following minimum capital requirements: (1) A ratio of common equity tier 1capital to total risk-weighted assets of 4.5 percent. (2) A ratio of tier 1 capital to total riskweighted assets of 6 percent. (3) A ratio of total capital to total riskweighted assets of 8 percent. (4) A ratio of tier 1 capital to adjusted average total assets of 4 percent.108 The new minimum capital requirements would be implemented over a transition period, as outlined in the proposed rule. For a summary of the transition period, refer to section 7 of this Addendum. As noted in the NPR, banking organizations are generally expected, as a prudential matter, to operate well above these minimum regulatory ratios, with capital commensurate with the level and nature of the risks they hold. 2. Capital Conservation Buffer In addition to these minimum capital requirements, the NPR would establish a capital conservation buffer. Specifically, banking organizations would need to hold common equity tier 1 capital in excess of their minimum risk-based capital ratios by at least 2.5 percent of risk-weighted assets in order to avoid limits on capital distributions (including dividend payments, discretionary payments on tier 1 instruments, and share buybacks) and certain discretionary bonus payments to executive officers, including heads of major business lines and similar employees. Under the NPR, a banking organization’s capital conservation buffer would be the smallest of the following ratios: a) its common equity tier 1 capital ratio (in percent) minus 4.5 percent; b) its tier 1 capital ratio (in percent) minus 6 percent;or c) its total capital ratio (in percent) minus 8 percent. To the extent a banking organization’s capital conservation buffer falls short of 2.5 percent of risk-weighted assets, the banking organization’s maximum payout amount for capital distributions and discretionary bonus payments (calculated as the maximum payout ratio multiplied by the sum of eligible retained income, as defined in the NPR) would decline. The following table shows the maximum payout ratio, depending on the banking organization’s capital conservation buffer. TABLE 1—CAPITAL CONSERVATION BUFFER Maximum payout ratio (as a percentage or eligible retained income) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Capital Conservation Buffer (as a percentage of risk-weighted assets) Greater than 2.5 percent ......................................................................................................................................... Less than or equal to 2.5 percent and greater than 1.875 percent ........................................................................ Less than or equal to 1.875 percent and greater than 1.25 percent ...................................................................... Less than or equal to 1.25 percent and greater than 0.625 percent ...................................................................... Less than or equal to 0.625 percent ....................................................................................................................... 108 Banking organizations should be aware that their leverage ratio requirements would be affected VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 by the new definition of tier 1 capital under this PO 00000 Frm 00050 Fmt 4701 Sfmt 4702 No payout limitation applies. 60 percent. 40 percent. 20 percent. 0 percent. proposal. See section 4 of this addendum on the definition of capital. E:\FR\FM\30AUP2.SGM 30AUP2 52841 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Eligible retained income for purposes of the proposed rule would mean a banking organization’s net income for the four calendar quarters preceding the current calendar quarter, based on the banking organization’s most recent quarterly regulatory reports, net of any capital distributions and associated tax effects not already reflected in net income. Under the NPR, the maximum payout amount for the current calendar quarter would be equal to the banking organization’s eligible retained income, multiplied by the applicable maximum payout ratio in Table 1. reflect the new capital ratio requirements. The NPR also proposes to introduce the common equity tier 1 capital ratio as a PCA capital category threshold. In addition, the NPR proposes to revise the existing definition of tangible equity. Under the NPR, tangible equity would be defined as tier 1 capital (composed of common equity tier 1 and additional tier 1 capital) plus any outstanding perpetual preferred stock (including related surplus) that is not already included in tier 1 capital. The proposed rule would prohibit a banking organization from making capital distributions or certain discretionary bonus payments during the current calendar quarter if: (A) its eligible retained income is negative; and (B) its capital conservation buffer ratio is less than 2.5 percent as of the end of the previous quarter. The NPR does not diminish the agencies’ authority to place additional limitations on capital distributions. 3. Adjustments to Prompt Corrective Action (PCA) Thresholds The NPR proposes to revise the PCA capital category thresholds to levels that TABLE 2—PROPOSED PCA THRESHOLD REQUIREMENTS * Threshold ratios PCA capital category Total risk-based capital ratio Well capitalized ........................................................................................................ Adequately capitalized ............................................................................................. Undercapitalized ...................................................................................................... Significantly undercapitalized .................................................................................. Tier 1 risk-based capital ratio 10% 8% <8% <6% Critically undercapitalized ........................................................................................ Common equity tier 1 risk-based capital ratio 8% 6% <6% <4% Tier 1 leverage ratio 6.5% 4.5% <4.5% <3% 5% 4% <4% <3% Tangible Equity/Total Assets < / = 2% * Proposed effective date: January 1, 2015. This date coincides with the phasing in of the new minimum capital requirements, which would be implemented over a transition period. 4. Definition of Capital The NPR proposes to revise the definition of capital to include the following regulatory capital components: common equity tier 1 capital, additional tier 1 capital, and tier 2 capital. These are summarized below (see summary table attached). Section 20 of the proposed rule describes the capital components and eligibility criteria for regulatory capital instruments. Section 20 also describes the criteria that each primary federal supervisor would consider when determining whether a capital instrument should be included in a specific regulatory capital component. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 a. Common Equity Tier 1 Capital The NPR defines common equity tier 1 capital as the sum of the common equity tier 1 elements, less applicable regulatory adjustments and deductions. Common equity tier 1 capital elements would include: 1. Common stock instruments (that satisfy specified criteria in the proposed rule) and related surplus (net of any treasury stock); 2. Retained earnings; 3. Accumulated other comprehensive income (AOCI); and 4. Common equity minority interest (as defined in the proposed rule) subject to the limitations outlined in section 21 of the proposed rule. b. Additional Tier 1 Capital The NPR would define additional tier 1 capital as the sum of additional tier 1 capital elements and related surplus, less applicable regulatory adjustments and deductions. Additional tier 1 capital elements would include: VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 1. Noncumulative perpetual preferred stock (that satisfy specified criteria in the proposed rule) and related surplus; 2. Tier 1 minority interest (as defined in the proposed rule), subject to limitations described in section 21 of the proposed rule, not included in the banking organization’s common equity tier 1 capital; and 3. Instruments that currently qualify as tier 1 capital under the agencies’ general riskbased capital rules and that were issued under the Small Business Job’s Act of 2010, or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008. c. Tier 2 Capital The proposed rule would define tier 2 capital as the sum of tier 2 capital elements and related surplus, less regulatory adjustments and deductions. The tier 2 capital elements would include: 1. Subordinated debt and preferred stock (that satisfy specified criteria in the proposed rule). This will include most of the subordinated debt currently included in tier 2 capital according to the agencies’ existing risk-based capital rules; 2. Total capital minority interest (as defined in the proposed rule), subject to the limitations described in section 21 of the proposed rule, and not included in the banking organization’s tier 1 capital; 3. Allowance for loan and lease losses (ALLL) not exceeding 1.25 percent of the banking organization’s total risk-weighted assets; and 4. Instruments that currently qualify as tier 2 capital under the agencies’ general riskbased capital rules and that were issued under the Small Business Job’s Act of 2010, PO 00000 Frm 00051 Fmt 4701 Sfmt 4702 or, prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008. d. Minority Interest The NPR proposes a calculation method that limits the amount of minority interest in a subsidiary that is not owned by the banking organization that may be included in regulatory capital. Under the NPR, common equity tier 1 minority interest would mean any minority interest arising from the issuance of common shares by a fully consolidated subsidiary. Common equity tier 1 minority interest may be recognized in common equity tier 1 only if both of the following are true: 1. The instrument giving rise to the minority interest would, if issued by the banking organization itself, meet all of the criteria for common stock instruments. 2. The subsidiary is itself a depository institution. If not recognized in common equity tier 1, the minority interest may be eligible for inclusion in additional tier 1 capital or tier 2 capital. For a capital instrument that meets all of the criteria for common stock instruments, the amount of common equity minority interest includable in the banking organization’s common equity tier 1 capital is equal to: The common equity tier 1 minority interest of the subsidiary minus (The percentage of the subsidiary’s common equity tier 1 capital that is not owned by the banking organization) multiplied by the difference between E:\FR\FM\30AUP2.SGM 30AUP2 52842 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (common equity tier 1 capital of the subsidiary and the lower of: • 7% of the risk weighted assets of the banking organization that relate to the subsidiary, or 7% of the risk weighted assets of the subsidiary) For tier 1 minority interest, the NPR proposes the same calculation method, but substitutes tier 1 capital in place of common equity tier 1 capital and 8.5 percent in place of 7 percent in the illustration above (and assuming the banking organization has a common equity tier 1 capital ratio of at least 7 percent). In the case of tier 1 minority interest, there is no requirement that the subsidiary be a depository institution. However, the NPR would require that any instrument giving rise to the minority interest must meet all of the criteria for either a common stock instrument or an additional tier 1 capital instrument. For total capital minority interest, the NPR proposes an equivalent calculation method (by substituting total capital in place of common equity tier 1 capital and 10.5 percent in place of 7 percent in the illustration above; and assuming the banking organization has a common equity tier 1 capital ratio of at least 7 percent). In the case of total capital minority interest, there is no requirement that the subsidiary be a depository institution. However, the NPR would require that any instrument giving rise to the minority interest must meet all of the criteria for either a common stock instrument, an additional tier 1 capital instrument, or a tier 2 capital instrument. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 e. Regulatory Capital Adjustments and Deductions A. Regulatory Deductions From Common Equity Tier 1 Capital The NPR would require that a banking organization deduct the following from the sum of its common equity tier 1 capital elements: Æ Goodwill and all other intangible assets (other than MSAs), net of any associated deferred tax liabilities (DTLs). Goodwill for purposes of this deduction includes any goodwill embedded in the valuation of a significant investment in the capital of an unconsolidated financial institution in the form of common stock. Æ DTAs that arise from operating loss and tax credit carryforwards net of any valuation allowance and net of DTLs (see section 22 of the proposed rule for the requirements on the netting of DTLs). Æ Any gain-on-sale associated with a securitization exposure. Æ Any defined benefit pension fund net asset109, net of any associated deferred tax 109 With prior approval of the primary federal supervisor, the banking organization may reduce the amount to be deducted by the amount of assets of the defined benefit pension fund to which it has unrestricted and unfettered access, provided that the banking organization includes such assets in its risk-weighted assets as if the banking organization held them directly. For this purpose, unrestricted and unfettered access means that the excess assets of the defined pension fund would be available to VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 liability.110 (The pension deduction does not apply to insured depository institutions that have their own defined benefit pension plan.) B. Regulatory Adjustments to Common Equity Tier 1 Capital The NPR would require that for the following items, a banking organization deduct any associated unrealized gain and add any associated unrealized loss to the sum of common equity tier 1 capital elements: Æ Unrealized gains and losses on cash flow hedges included in AOCI that relate to the hedging of items that are not recognized at fair value on the balance sheet. Æ Unrealized gains and losses that have resulted from changes in the fair value of liabilities that are due to changes in the banking organization’s own credit risk. C. Additional Deductions From Regulatory Capital Under the NPR, a banking organization would be required to make the following deductions with respect to investments in its own capital instruments: Æ Deduct from common equity tier 1 elements investments in the banking organization’s own common stock instruments (including any contractual obligation to purchase), whether held directly or indirectly. Æ Deduct from additional tier 1 capital elements, investments in (including any contractual obligation to purchase) the banking organization’s own additional tier 1 capital instruments, whether held directly or indirectly. Æ Deduct from tier 2 capital elements, investments in (including any contractual obligation to purchase) the banking organization’s own tier 2 capital instruments, whether held directly or indirectly. D. Corresponding Deduction Approach Under the NPR, a banking organization would use the corresponding deduction approach to calculate the required deductions from regulatory capital for: Æ Reciprocal cross-holdings; Æ Non-significant investments in the capital of unconsolidated financial institutions; and Æ Non-common stock significant investments in the capital of unconsolidated financial institutions. Under the corresponding deduction approach, a banking organization would be required to make any such deductions from the same component of capital for which the underlying instrument would qualify if it were issued by the banking organization itself. In addition, if the banking organization does not have a sufficient amount of such component of capital to effect the deduction, the shortfall will be deducted from the next higher (that is, more subordinated) component of regulatory capital (for example, if the exposure may be deducted from additional tier 1 capital but the banking organization does not have sufficient protect depositors or creditors of the banking organization in a receivership, insolvency, liquidation, or similar proceeding. 110 The deferred tax liabilities for this deduction exclude those deferred tax liabilities that have already been netted against DTAs. PO 00000 Frm 00052 Fmt 4701 Sfmt 4702 additional tier 1 capital, it would take the deduction from common equity tier 1 capital). The NPR provides additional information regarding the corresponding deduction approach for those banking organizations with such holdings and investments. Reciprocal crossholdings in the capital of financial institutions: The NPR would require a banking organization to deduct investments in the capital of other financial institutions it holds reciprocally.111 Non-significant investments in the capital of unconsolidated financial institutions112: The proposed rule would require a banking organization to deduct any non-significant investments in the capital of unconsolidated financial institutions that, in the aggregate, exceed 10 percent of the sum of the banking organization’s common equity tier 1 capital elements less all deductions and other regulatory adjustments required under sections 22(a) through 22(c)(3) of the proposed rule (the 10 percent threshold for non-significant investments in unconsolidated financial institutions). Æ The amount to be deducted from a specific capital component is equal to (i) the amount of a banking organization’s nonsignificant investments exceeding the 10 percent threshold for non-significant investments multiplied by (ii) the ratio of the non-significant investments in unconsolidated financial institutions in the form of such capital component to the amount of the banking organization’s total non-significant investments in unconsolidated financial institutions. Æ The banking organization’s nonsignificant investments in the capital of unconsolidated financial institutions not exceeding the 10 percent threshold for nonsignificant investments must be assigned the appropriate risk weight under the Standardized Approach NPR. Significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock: A banking organization must deduct its significant investments in the capital of unconsolidated financial institutions not in the form of common stock. E. Threshold Deductions The NPR would require a banking organization to deduct from common equity tier 1 capital elements each of the following assets (together, the threshold deduction items) that, individually, are above 10 percent of the sum of the banking organization’s common equity tier 1 capital elements, less all required adjustments and deductions required under sections 22(a) through 22(c) of the proposed rule (the 10 111 An instrument is held reciprocally if the instrument is held pursuant to a formal or informal arrangement to swap, exchange, or otherwise intend to hold each other’s capital instruments. 112 With prior written approval of the primary federal supervisor, for the period of time stipulated by the primary federal supervisor, a banking organization would not be required to deduct exposures to the capital instruments of unconsolidated financial institutions if the investment is made in connection with the banking organization providing financial support to a financial institution in distress. E:\FR\FM\30AUP2.SGM 30AUP2 52843 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules percent common equity deduction threshold): Æ DTAs arising from temporary differences that the banking organization could not realize through net operating loss carrybacks, net of any associated valuation allowance, and DTLs, subject to the following limitations: D Only the DTAs and DTLs that relate to taxes levied by the same taxation authority and that are eligible for offsetting by that authority may be offset for purposes of this deduction. D The DTLs offset against DTAs must exclude amounts that have already been netted against other items that are either fully deducted (such as goodwill) or subject to deduction (such as MSA). Æ MSAs, net of associated DTLs. Æ Significant investments in the capital of unconsolidated financial institutions in the form of common stock. In addition, the aggregate amount of the threshold deduction items in this section cannot exceed 15 percent of the banking organization’s common equity tier 1 capital net of all deductions (the 15 percent common equity deduction threshold). That is, the banking organization must deduct from common equity tier 1 capital elements, the amount of the threshold deduction items that are not deducted after the application of the 10 percent common equity deduction threshold, and that, in aggregate, exceed 17.65 percent of the sum of the banking organization’s common equity tier 1 capital elements, less all required adjustments and deductions required under sections 22(a) through 22(c) of the proposed rule and less the threshold deduction items in full. 5. Changes in Risk-weighted Assets The amounts of the threshold deduction items within the limits and not deducted, as described above, would be included in the risk-weighted assets of the banking organization and assigned a risk weight of 250 percent. In addition, certain exposures that are currently deducted under the general risk-based capital rules, for example certain credit enhancing interest-only strips, would receive a 1,250% risk weight. 6. Timeline and Transition Period The NPR would provide for a multi-year implementation as summarized in the table below: TABLE 3—PHASE-IN SCHEDULE Year (as of Jan. 1) 2013 (percent) 2014 (percent) 2015 (percent) Minimum common equity tier 1 ratio ..................... Common equity tier 1 capital conservation buffer Common equity tier 1 plus capital conservation buffer .................................................................. Phase-in of deductions from common equity tier 1 (including threshold deduction items that are over the limits) .................................................... Minimum tier 1 capital ............................................ Minimum tier 1 capital plus capital conservation buffer .................................................................. Minimum total capital ............................................. Minimum total capital plus conservation buffer ..... 3.5 .................. 4.0 .................. 4.5 .................. 4.5 0.625 4.5 1.25 4.5 1.875 4.5 2.50 3.5 4.0 4.5 5.125 5.75 6.375 7.0 .................. 4.5 20 5.5 40 6.0 60 6.0 80 6.0 100 6.0 100 6.0 .................. 8.0 8.0 .................. 8.0 8.0 .................. 8.0 8.0 6.625 8.0 8.625 7.25 8.0 9.25 7.875 8.0 9.875 8.5 8.0 10.5 As provided in Basel III, capital instruments that no longer qualify as additional tier 1 or tier 2 capital will be phased out over a 10 year horizon beginning in 2013. However, trust preferred securities are phased out as required under the DoddFrank Act. 2016 (percent) 2017 (percent) 2018 (percent) 2019 (percent) Attached to this Addendum I is a summary of the proposed revision to the components of capital introduced by the NPR. Components and tiers Explanation (1) COMMON EQUITY TIER 1 CAPITAL: (a) + Qualifying common stock instruments ............................................. (b) + Retained earnings. (c) + AOCI ................................................................................................. Instruments must meet all of the common equity tier 1 criteria (Note 1) (d) + Qualifying common equity tier 1 minority interest ........................... (e) ¥ Regulatory deductions from common equity tier 1 capital ............. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (f) +/¥ Regulatory adjustments to common equity tier 1 capital ............. (g) ¥ common equity tier 1 capital deductions per the corresponding deduction approach. (h) ¥ Threshold deductions ..................................................................... = common equity tier 1 capital. (2) ADDITIONAL TIER 1 CAPITAL: (a) + additional tier 1 capital instruments ................................................. (b) + Tier 1 minority interest that is not included in common equity tier 1 capital. (c) + Non-qualifying tier 1 capital instruments subject to transition phase-out and SBLF related instruments. (d) ¥ Investments in a banking organization’s own additional tier 1 capital instruments. (e) ¥ Additional tier 1 capital deductions per the corresponding deduction approach. = Additional tier 1 capital. (3) TIER 2 CAPITAL: (a) + Tier 2 capital instruments ................................................................. VerDate Mar<15>2010 19:45 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00053 Fmt 4701 With the exception in Note 2 below, AOCI flows through to common equity tier 1 capital. Subject to specific calculation method and limitation. Deduct: Goodwill and intangible assets (other than MSAs); DTAs that arise from operating loss and tax credit carryforwards; any gain on sale from a securitization; investments in the banking organization’s own common stock instruments. See explanation below (Note 2). See section 4.e.D above. Deduct amount of threshold items that are above the 10 and 15 percent common equity tier 1 thresholds. (See section 4.e. above). Instruments must meet all of the additional tier 1 criteria (Note 1). Subject to specific calculation and limitation. (Note 3) See section 4.e.D above. Instruments must meet all of the tier 2 criteria (Note 1). Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 52844 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Components and tiers Explanation (b) + Total capital minority interest that is not included in tier 1 .............. (c) + ALLL ................................................................................................. (d) ¥ Investments in a banking organization’s own tier 2 capital instruments. (e) ¥ Tier 2 capital deductions per the Corresponding Deduction Approach. (f) + Non-qualifying tier 2 capital instruments subject to transition phase-out and SBLF related instruments. = Tier 2 capital. TOTAL CAPITAL = common equity tier 1 + additional tier 1 + tier 2. Subject to specific calculation and limitation. Up to 1.25% of risk weighted assets. See section 4.e.D above. (Note 3) Notes to Table: Note 1:Includes surplus related to the instruments. Note 2: Regulatory adjustments: A banking organization must deduct any unrealized gain and add any unrealized loss for cash flow hedges included in AOCI relating to hedging of items not fair valued on the balance sheet and for unrealized gains and losses that have resulted from changes in the fair value of liabilities that are due to changes in the banking organization’s own credit risk. Note 3: Grandfathered SBLF related instruments: These are instruments issued under the Small Business Lending Facility (SBLF); or prior October 4, 2010 under the Emergency Economic Stabilization Act of 2008. If the instrument qualified as tier 1 capital under rules at the time of issuance, it would count as additional tier 1 under this proposal. If the instrument qualified as tier 2 under the rules at that time, it would count as tier 2 under this proposal. ATTACHMENT 2: COMPARISON OF CURRENT RULES VS. PROPOSAL Minimum regulatory capital requirements Current minimum ratios Common equity tier 1 capital/ risk weighted assets. Tier 1 capital/risk weighted assets. Total capital/risk weighted assets. Leverage ratio ............................ Proposed minimum ratios N/A ............................................. 4.5% 4% .............................................. 6% 8% .............................................. 8% ≥4% (or ≥3%) ............................. ≥4% Comments Minimum required level will not vary depending on the supervisory rating. Capital buffers Current treatment Capital conservation buffer ........ Proposed treatment Comment N/A ............................................. Capital conservation buffer equivalent to 2.5% of riskweighted assets; composed of common equity tier 1 capital. Not holding the capital conservation buffer may result in restrictions on capital distributions and certain discretionary bonus payments. Prompt corrective action Current PCA levels Proposed PCA levels Comment Common equity tier 1 capital ..... N/A ............................................. Proposed adequately capitalized PCA level aligned to new minimum ratio. Tier 1 capital .............................. Well capitalized: ≥6%; Adequately capitalized: ≥4%; Undercapitalized <4%; Significantly undercapitalized: <3%. Well capitalized: ≥10%; Adequately capitalized: ≥8%; Undercapitalized <8%; Significantly undercapitalized: <6%. Well capitalized: ≥5%; Adequately capitalized: ≥4% (or ≥3%); Undercapitalized <4% (or <3%); Significantly undercapitalized: <3%. Tangible equity to total assets ratio ≤2. Well capitalized: ≥6.5%; Adequately capitalized: ≥4.5%; Undercapitalized: <4.5%; Significantly undercapitalized: <3%. Well capitalized: ≥8%; Adequately capitalized: ≥6%; Undercapitalized <6%; Significantly undercapitalized: <4%. Well capitalized: ≥10%; Adequately capitalized: ≥8%; Undercapitalized <8%; Significantly undercapitalized: <6%. Well capitalized: ≥5%; Adequately capitalized: ≥4%; Undercapitalized <4%; Significantly undercapitalized: <3%. Tangible equity to total assets ≤2. Tangible equity under the proposal would be defined as tier 1 capital plus non-tier 1 perpetual preferred stock. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Total capital ............................... Leverage ratio ............................ Critically undercapitalized category. VerDate Mar<15>2010 19:55 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00054 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM Proposed adequately capitalized PCA level aligned to new minimum ratio. PCA adequately capitalized level will not vary depending on the supervisory rating. 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules 52845 ATTACHMENT 2: COMPARISON OF CURRENT RULES VS. PROPOSAL—CONTINUED Regulatory capital components Current definition/instruments Proposed definition/ instruments Comments Common equity tier 1 capital ..... No specific definition ................. Common stock instruments traditionally issued by U.S. banking organizations expected generally to qualify as common equity tier 1 capital. Additional tier 1 capital .............. No specific definition ................. Mostly retained earnings and common stock that meet specified eligibility criteria (plus limited amounts of minority interest in the form of common stock) less the majority of the regulatory deductions. Equity capital instruments that meet specified eligibility criteria (plus limited amounts of minority interest in the form of tier 1 capital instruments). Tier 2 capital .............................. Certain capital instruments (e.g., subordinated debt) and limited amounts of ALLL. Capital instruments that meet specified eligibility criteria (e.g., subordinated debt) and limited amounts of ALLL. Non-cumulative perpetual preferred stock traditionally issued by U.S. banking organizations expected to generally qualify; trust preferred instruments traditionally issued by certain bank holding companies would not qualify. Traditional subordinated debt instruments are expected to remain tier 2 eligible; there is no specific limitation on the amount of tier 2 capital that can be included in total capital under the proposal. Regulatory deductions and adjustments Current treatment Proposed treatment Comment Regulatory deductions ............... Current deductions from regulatory capital include goodwill and other intangibles, DTAs (above certain levels), and MSAs (above certain levels). Vast majority of regulatory deductions are made at the common equity tier 1 capital level (as opposed to the tier 1 level); the proposed deductions for MSAs and DTAs in the proposed rule are significantly more stringent than the current deductions. Regulatory adjustments ............. Current adjustments include the neutralization of unrealized gains and losses on available for sale debt securities for regulatory capital purposes. MSAs and DTAs that are not deducted are subject to a 100 percent risk weight. Proposed deductions from common equity tier 1 capital include goodwill and other intangibles, DTAs (above certain levels), MSAs (above certain levels) and investments in unconsolidated financial institutions (above certain levels). Under the proposal, AOCI would generally flow through to regulatory capital. MSAs, certain DTAs arising from temporary differences, and certain significant investments in the common stock of unconsolidated financial institutions. The portion of a CEIO that does not constitute an after-taxgain-on-sale. Dollar-for-dollar capital requirement for amounts not deducted based on a concentration limit. Items that are not deducted are subject to a 250 percent risk weight. Subject to a 1250 percent risk weight. Text of Common Rule § l.11 Capital conservation buffer and countercyclical capital buffer amount. PART [l] CAPITAL ADEQUACY OF [BANK]s Subpart C—Definition of Capital § l.20 Capital components and eligibility criteria for regulatory capital instruments. § l.21 Minority interest. § l.22 Regulatory capital adjustments and deductions. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Sec. Subpart A—General § l.1 Purpose, applicability, and reservations of authority. § l.2 Definitions. Subpart G—Transition Provisions Subpart B—Minimum Capital Requirements and Buffers § l.10 § l.300 Transitions. Minimum capital requirements. VerDate Mar<15>2010 19:55 Aug 29, 2012 Jkt 226001 PO 00000 Frm 00055 Under the proposed treatment unrealized gains and losses on available for sale debt securities would not be neutralized for regulatory capital purposes. Under the proposal, these items are subject to deduction if they exceed certain specified common equity deduction thresholds. Fmt 4701 Sfmt 4702 Subpart A—General Provisions § l.1 Purpose, applicability, and reservations of authority (a) Purpose. This [PART] establishes minimum capital requirements and overall capital adequacy standards for [BANK]s. This [PART] includes methodologies for calculating minimum capital requirements, public disclosure requirements related to the capital requirements, and transition provisions for the application of this [PART]. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52846 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (b) Limitation of authority. Nothing in this [PART] shall be read to limit the authority of the [AGENCY] to take action under other provisions of law, including action to address unsafe or unsound practices or conditions, deficient capital levels, or violations of law or regulation, under section 8 of the Federal Deposit Insurance Act. (c) Applicability. (1) Minimum capital requirements and overall capital adequacy standards. Each [BANK] must calculate its minimum capital requirements and meet the overall capital adequacy standards in subpart B of this part. (2) Regulatory capital. Each [BANK] must calculate its regulatory capital in accordance with subpart C. (3) Risk-weighted assets. (i) Each [BANK] must use the methodologies in subpart D (and subpart F for a market risk [BANK]) to calculate standardized total risk-weighted assets. (ii) Each advanced approaches [BANK] must use the methodologies in subpart E (and subpart F of this part for a market risk [BANK]) to calculate advanced approaches total riskweighted assets. (4) Disclosures. (i) A [BANK] with total consolidated assets of $50 billion or more that is not an advanced approaches [BANK] must make the public disclosures described in subpart D of this part. (ii) Each market risk [BANK] must make the public disclosures described in subparts D and F of this part. (iii) Each advanced approaches [BANK] must make the public disclosures described in subpart E of this part. (d) Reservation of authority. (1) Additional capital in the aggregate. The [AGENCY] may require a [BANK] to hold an amount of regulatory capital greater than otherwise required under this part if the [AGENCY] determines that the [BANK]’s capital requirements under this part are not commensurate with the [BANK]’s credit, market, operational, or other risks. (2) Regulatory capital elements. If the [AGENCY] determines that a particular common equity tier 1, additional tier 1, or tier 2 capital element has characteristics or terms that diminish its ability to absorb losses, or otherwise present safety and soundness concerns, the [AGENCY] may require the [BANK] to exclude all or a portion of such element from common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, as appropriate. (3) Risk-weighted asset amounts. If the [AGENCY] determines that the riskweighted asset amount calculated under this part by the [BANK] for one or more VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 exposures is not commensurate with the risks associated with those exposures, the [AGENCY] may require the [BANK] to assign a different risk-weighted asset amount to the exposure(s) or to deduct the amount of the exposure(s) from its regulatory capital. (4) Total leverage. If the [AGENCY] determines that the leverage exposure amount, or the amount reflected in the [BANK]’s reported average consolidated assets, for an on- or off-balance sheet exposure calculated by a [BANK] under § l.10 is inappropriate for the exposure(s) or the circumstances of the [BANK], the [AGENCY] may require the [BANK] to adjust this exposure amount in the numerator and the denominator for purposes of the leverage ratio calculations. (5) Consolidation of certain exposures. The [AGENCY] may determine that the risk-based capital treatment for an exposure or the treatment provided to an entity that is not consolidated on the [BANK]’s balance sheet is not commensurate with the risk of the exposure and the relationship of the [BANK] to the entity. Upon making this determination, the [AGENCY] may require the [BANK] to treat the entity as if it were consolidated on the balance sheet of the [BANK] for purposes of determining its regulatory capital requirements and calculate the regulatory capital ratios accordingly. The [AGENCY] will look to the substance of, and risk associated with, the transaction, as well as other relevant factors the [AGENCY] deems appropriate in determining whether to require such treatment. (6) Other reservation of authority. With respect to any deduction or limitation required under this [PART], the [AGENCY] may require a different deduction or limitation, provided that such alternative deduction or limitation is commensurate with the [BANK]’s risk and consistent with safety and soundness. (e) Notice and response procedures. In making a determination under this section, the [AGENCY] will apply notice and response procedures in the same manner as the notice and response procedures in 12 CFR 3.12, 12 CFR 167.3(d) (OCC); 12 CFR 263.202 (Board); 12 CFR 325.6(c), 12 CFR 390.463(d) (FDIC). § l.2 Definitions. Additional tier 1 capital is defined in § l.20 of subpart C of this part. Advanced approaches [BANK] means a [BANK] that is described in § l.100(b)(1) of subpart E of this part. Advanced approaches total riskweighted assets means: PO 00000 Frm 00056 Fmt 4701 Sfmt 4702 (1) The sum of: (i) Credit-risk-weighted assets; (ii) Credit Valuation Adjustment (CVA) risk-weighted assets; (iii) Risk-weighted assets for operational risk; and (iv) For a market risk [BANK] only, advanced market risk-weighted assets; minus (2) Excess eligible credit reserves not included in the [BANK]’s tier 2 capital. Advanced market risk-weighted assets means the advanced measure for market risk calculated under § l.204 of subpart F of this part multiplied by 12.5. Affiliate with respect to a company means any company that controls, is controlled by, or is under common control with, the company. Allocated transfer risk reserves means reserves that have been established in accordance with section 905(a) of the International Lending Supervision Act, against certain assets whose value U.S. supervisory authorities have found to be significantly impaired by protracted transfer risk problems. Allowances for loan and lease losses (ALLL) means reserves that have been established through a charge against earnings to absorb future losses on loans, lease financing receivables or other extensions of credit. ALLL excludes ‘‘allocated transfer risk reserves.’’ For purposes of this [PART], ALLL includes reserves that have been established through a charge against earnings to absorb future credit losses associated with off-balance sheet exposures. Asset-backed commercial paper (ABCP) program means a program established primarily for the purpose of issuing commercial paper that is investment grade and backed by underlying exposures held in a bankruptcy-remote special purpose entity (SPE). Asset-backed commercial paper (ABCP) program sponsor means a [BANK] that: (1) Establishes an ABCP program; (2) Approves the sellers permitted to participate in an ABCP program; (3) Approves the exposures to be purchased by an ABCP program; or (4) Administers the ABCP program by monitoring the underlying exposures, underwriting or otherwise arranging for the placement of debt or other obligations issued by the program, compiling monthly reports, or ensuring compliance with the program documents and with the program’s credit and investment policy. Bank holding company means a bank holding company as defined in section 2 of the Bank Holding Company Act. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Bank Holding Company Act means the Bank Holding Company Act of 1956, as amended (12 U.S.C. 1841). Bankruptcy remote means, with respect to an entity or asset, that the entity or asset would be excluded from an insolvent entity’s estate in receivership, insolvency, liquidation, or similar proceeding. Capital distribution means: (1) A reduction of tier 1 capital through the repurchase of a tier 1 capital instrument or by other means; (2) A reduction of tier 2 capital through the repurchase, or redemption prior to maturity, of a tier 2 capital instrument or by other means; (3) A dividend declaration on any tier 1 capital instrument; (4) A dividend declaration or interest payment on any tier 2 capital instrument if such dividend declaration or interest payment may be temporarily or permanently suspended at the discretion of the [BANK]; or (5) Any similar transaction that the [AGENCY] determines to be in substance a distribution of capital. Carrying value means, with respect to an asset, the value of the asset on the balance sheet of the [BANK], determined in accordance with generally accepted accounting principles (GAAP). Category 1 residential mortgage exposure means a residential mortgage exposure with the following characteristics: (1) The duration of the mortgage exposure does not exceed 30 years; (2) The terms of the mortgage exposure provide for regular periodic payments that do not: (i) Result in an increase of the principal balance; (ii) Allow the borrower to defer repayment of principal of the residential mortgage exposure; or (iii) Result in a balloon payment; (3) The standards used to underwrite the residential mortgage exposure: (i) Took into account all of the borrower’s obligations, including for mortgage obligations, principal, interest, taxes, insurance (including mortgage guarantee insurance), and assessments; and (ii) Resulted in a conclusion that the borrower is able to repay the exposure using: (A) The maximum interest rate that may apply during the first five years after the date of the closing of the residential mortgage exposure transaction; and (B) The amount of the residential mortgage exposure is the maximum possible contractual exposure over the life of the mortgage as of the date of the closing of the transaction; VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (4) The terms of the residential mortgage exposure allow the annual rate of interest to increase no more than two percentage points in any twelve-month period and no more than six percentage points over the life of the exposure; (5) For a first-lien home equity line of credit (HELOC), the borrower must be qualified using the principal and interest payments based on the maximum contractual exposure under the terms of the HELOC; (6) The determination of the borrower’s ability to repay is based on documented, verified income; (7) The residential mortgage exposure is not 90 days or more past due or on non-accrual status; and (8) The residential mortgage exposure is (i) Not a junior-lien residential mortgage exposure, and (ii) If the residential mortgage exposure is a first-lien residential mortgage exposure held by a single banking organization and secured by first and junior lien(s) where no other party holds an intervening lien, each residential mortgage exposure must have the characteristics of a category 1 residential mortgage exposure as set forth in this definition. Notwithstanding paragraphs (1) through (8) of this definition, the [AGENCY] may determine that a residential mortgage exposure that is not prudently underwritten does not qualify as a category 1 residential mortgage exposure. Category 2 residential mortgage exposure means a residential mortgage exposure that is not a Category 1 residential mortgage exposure. Central counterparty (CCP) means a counterparty (for example, a clearing house) that facilitates trades between counterparties in one or more financial markets by either guaranteeing trades or novating contracts. CFTC means the U.S. Commodity Futures Trading Commission. Clean-up call means a contractual provision that permits an originating [BANK] or servicer to call securitization exposures before their stated maturity or call date. Cleared transaction means an outstanding derivative contract or repostyle transaction that a [BANK] or clearing member has entered into with a central counterparty (that is, a transaction that a central counterparty has accepted). A cleared transaction includes: (1) A transaction between a CCP and a [BANK] that is a clearing member of the CCP where the [BANK] enters into the transaction with the CCP for the [BANK]’s own account; PO 00000 Frm 00057 Fmt 4701 Sfmt 4702 52847 (2) A transaction between a CCP and a [BANK] that is a clearing member of the CCP where the [BANK] is acting as a financial intermediary on behalf of a clearing member client and the transaction offsets a transaction that satisfies the requirements of paragraph (3) of this definition. (3) A transaction between a clearing member client [BANK] and a clearing member where the clearing member acts as a financial intermediary on behalf of the clearing member client and enters into an offsetting transaction with a CCP provided that: (i) The offsetting transaction is identified by the CCP as a transaction for the clearing member client; (ii) The collateral supporting the transaction is held in a manner that prevents the [BANK] from facing any loss due to the default, receivership, or insolvency of either the clearing member or the clearing member’s other clients; (iii) The [BANK] has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that in the event of a legal challenge (including one resulting from a default or receivership, insolvency, liquidation, or similar proceeding) the relevant court and administrative authorities would find the arrangements of paragraph (3)(ii) of this definition to be legal, valid, binding and enforceable under the law of the relevant jurisdictions; and (iv) The offsetting transaction with a clearing member is transferable under the transaction documents or applicable laws in the relevant jurisdiction(s) to another clearing member should the clearing member default, become insolvent, or enter receivership, insolvency, liquidation, or similar proceeding. (4) A transaction between a clearing member client and a CCP where a clearing member guarantees the performance of the clearing member client to the CCP and the transaction meets the requirements of paragraphs (3)(ii) and (iii) of this definition. (5) A cleared transaction does not include the exposure of a [BANK] that is a clearing member to its clearing member client where the [BANK] is either acting as a financial intermediary and enters into an offsetting transaction with a CCP or where the [BANK] provides a guarantee to the CCP on the performance of the client. Clearing member means a member of, or direct participant in, a CCP that is entitled to enter into transactions with the CCP. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52848 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Clearing member client means a party to a cleared transaction associated with a CCP in which a clearing member acts either as a financial intermediary with respect to the party or guarantees the performance of the party to the CCP. Collateral agreement means a legal contract that specifies the time when, and circumstances under which, a counterparty is required to pledge collateral to a [BANK] for a single financial contract or for all financial contracts in a netting set and confers upon the [BANK] a perfected, firstpriority security interest (notwithstanding the prior security interest of any custodial agent), or the legal equivalent thereof, in the collateral posted by the counterparty under the agreement. This security interest must provide the [BANK] with a right to close out the financial positions and liquidate the collateral upon an event of default of, or failure to perform by, the counterparty under the collateral agreement. A contract would not satisfy this requirement if the [BANK]’s exercise of rights under the agreement may be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs. Commitment means any legally binding arrangement that obligates a [BANK] to extend credit or to purchase assets. Commodity derivative contract means a commodity-linked swap, purchased commodity-linked option, forward commodity-linked contract, or any other instrument linked to commodities that gives rise to similar counterparty credit risks. Common equity tier 1 capital is defined in § ll.20 of subpart C of this part. Common equity tier 1 minority interest means the common equity tier 1 capital of a depository institution or foreign bank that is: (1) A consolidated subsidiary of a [BANK]; and (2) Not owned by the [BANK]. Company means a corporation, partnership, limited liability company, depository institution, business trust, special purpose entity, association, or similar organization. Control. A person or company controls a company if it: (1) Owns, controls, or holds with power to vote 25 percent or more of a class of voting securities of the company; or VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) Consolidates the company for financial reporting purposes. Corporate exposure means an exposure to a company that is not: (1) An exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, a multi-lateral development bank (MDB), a depository institution, a foreign bank, a credit union, or a public sector entity (PSE); (2) An exposure to a governmentsponsored entity (GSE); (3) A residential mortgage exposure; (4) A pre-sold construction loan; (5) A statutory multifamily mortgage; (6) A high volatility commercial real estate (HVCRE) exposure; (7) A cleared transaction; (8) A default fund contribution; (9) A securitization exposure; (10) An equity exposure; or (11) An unsettled transaction. Country risk classification (CRC) with respect to a sovereign means the most recent consensus CRC published by the Organization for Economic Cooperation and Development (OECD) as of December 31st of the prior calendar year that provides a view of the likelihood that the sovereign will service its external debt. Credit derivative means a financial contract executed under standard industry credit derivative documentation that allows one party (the protection purchaser) to transfer the credit risk of one or more exposures (reference exposure(s)) to another party (the protection provider) for a certain period of time. Credit-enhancing interest-only strip (CEIO) means an on-balance sheet asset that, in form or in substance: (1) Represents a contractual right to receive some or all of the interest and no more than a minimal amount of principal due on the underlying exposures of a securitization; and (2) Exposes the holder of the CEIO to credit risk directly or indirectly associated with the underlying exposures that exceeds a pro rata share of the holder’s claim on the underlying exposures, whether through subordination provisions or other credit-enhancement techniques. Credit-enhancing representations and warranties means representations and warranties that are made or assumed in connection with a transfer of underlying exposures (including loan servicing assets) and that obligate a [BANK] to protect another party from losses arising from the credit risk of the underlying exposures. Credit enhancing representations and warranties include provisions to protect a party from losses PO 00000 Frm 00058 Fmt 4701 Sfmt 4702 resulting from the default or nonperformance of the counterparties of the underlying exposures or from an insufficiency in the value of the collateral backing the underlying exposures. Credit enhancing representations and warranties do not include warranties that permit the return of underlying exposures in instances of misrepresentation, fraud, or incomplete documentation. Credit risk mitigant means collateral, a credit derivative, or a guarantee. Credit-risk-weighted assets means 1.06 multiplied by the sum of: (1) Total wholesale and retail riskweighted assets; (2) Risk-weighted assets for securitization exposures; and (3) Risk-weighted assets for equity exposures. Credit union means an insured credit union as defined under the Federal Credit Union Act (12 U.S.C. 1752). Current exposure means, with respect to a netting set, the larger of zero or the market value of a transaction or portfolio of transactions within the netting set that would be lost upon default of the counterparty, assuming no recovery on the value of the transactions. Current exposure is also called replacement cost. Custodian means a financial institution that has legal custody of collateral provided to a CCP. Debt-to-assets ratio means the ratio calculated by dividing a public company’s total liabilities by its equity market value (as defined herein) plus total liabilities as reported as of the end of the most recently reported calendar quarter. Default fund contribution means the funds contributed or commitments made by a clearing member to a CCP’s mutualized loss sharing arrangement. Depository institution means a depository institution as defined in section 3 of the Federal Deposit Insurance Act. Depository institution holding company means a bank holding company or savings and loan holding company. Derivative contract means a financial contract whose value is derived from the values of one or more underlying assets, reference rates, or indices of asset values or reference rates. Derivative contracts include interest rate derivative contracts, exchange rate derivative contracts, equity derivative contracts, commodity derivative contracts, credit derivative contracts, and any other instrument that poses similar counterparty credit risks. Derivative contracts also include unsettled securities, commodities, and foreign E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules exchange transactions with a contractual settlement or delivery lag that is longer than the lesser of the market standard for the particular instrument or five business days. Discretionary bonus payment means a payment made to an executive officer of a [BANK], where: (1) The [BANK] retains discretion as to whether to make, and the amount of, the payment until the payment is awarded to the executive officer; (2) The amount paid is determined by the [BANK] without prior promise to, or agreement with, the executive officer; and (3) The executive officer has no contractual right, whether express or implied, to the bonus payment. Dodd-Frank Act means the DoddFrank Wall Street Reform and Consumer Protection Act of 2010 (Pub. L. 111–203, 124 Stat. 1376). Early amortization provision means a provision in the documentation governing a securitization that, when triggered, causes investors in the securitization exposures to be repaid before the original stated maturity of the securitization exposures, unless the provision: (1) Is triggered solely by events not directly related to the performance of the underlying exposures or the originating [BANK] (such as material changes in tax laws or regulations); or (2) Leaves investors fully exposed to future draws by borrowers on the underlying exposures even after the provision is triggered. Effective notional amount means for an eligible guarantee or eligible credit derivative, the lesser of the contractual notional amount of the credit risk mitigant and the exposure amount of the hedged exposure, multiplied by the percentage coverage of the credit risk mitigant. Eligible asset-backed commercial paper (ABCP) liquidity facility means a liquidity facility supporting ABCP, in form or in substance, that is subject to an asset quality test at the time of draw that precludes funding against assets that are 90 days or more past due or in default. Notwithstanding the preceding sentence, a liquidity facility is an eligible ABCP liquidity facility if the assets or exposures funded under the liquidity facility that do not meet the eligibility requirements are guaranteed by a sovereign that qualifies for a 20 percent risk weight or lower. Eligible clean-up call means a cleanup call that: (1) Is exercisable solely at the discretion of the originating [BANK] or servicer; VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) Is not structured to avoid allocating losses to securitization exposures held by investors or otherwise structured to provide credit enhancement to the securitization; and (3)(i) For a traditional securitization, is only exercisable when 10 percent or less of the principal amount of the underlying exposures or securitization exposures (determined as of the inception of the securitization) is outstanding; or (ii) For a synthetic securitization, is only exercisable when 10 percent or less of the principal amount of the reference portfolio of underlying exposures (determined as of the inception of the securitization) is outstanding. Eligible credit derivative means a credit derivative in the form of a credit default swap, nth-to-default swap, total return swap, or any other form of credit derivative approved by the [AGENCY], provided that: (1) The contract meets the requirements of an eligible guarantee and has been confirmed by the protection purchaser and the protection provider; (2) Any assignment of the contract has been confirmed by all relevant parties; (3) If the credit derivative is a credit default swap or nth-to-default swap, the contract includes the following credit events: (i) Failure to pay any amount due under the terms of the reference exposure, subject to any applicable minimal payment threshold that is consistent with standard market practice and with a grace period that is closely in line with the grace period of the reference exposure; and (ii) Receivership, insolvency, liquidation, conservatorship or inability of the reference exposure issuer to pay its debts, or its failure or admission in writing of its inability generally to pay its debts as they become due, and similar events; (4) The terms and conditions dictating the manner in which the contract is to be settled are incorporated into the contract; (5) If the contract allows for cash settlement, the contract incorporates a robust valuation process to estimate loss reliably and specifies a reasonable period for obtaining post-credit event valuations of the reference exposure; (6) If the contract requires the protection purchaser to transfer an exposure to the protection provider at settlement, the terms of at least one of the exposures that is permitted to be transferred under the contract provide that any required consent to transfer may not be unreasonably withheld; PO 00000 Frm 00059 Fmt 4701 Sfmt 4702 52849 (7) If the credit derivative is a credit default swap or nth-to-default swap, the contract clearly identifies the parties responsible for determining whether a credit event has occurred, specifies that this determination is not the sole responsibility of the protection provider, and gives the protection purchaser the right to notify the protection provider of the occurrence of a credit event; and (8) If the credit derivative is a total return swap and the [BANK] records net payments received on the swap as net income, the [BANK] records offsetting deterioration in the value of the hedged exposure (either through reductions in fair value or by an addition to reserves). Eligible credit reserves means all general allowances that have been established through a charge against earnings to absorb credit losses associated with on- or off-balance sheet wholesale and retail exposures, including the allowance for loan and lease losses (ALLL) associated with such exposures but excluding allocated transfer risk reserves established pursuant to 12 U.S.C. 3904 and other specific reserves created against recognized losses. Eligible guarantee means a guarantee from an eligible guarantor that: (1) Is written; (2) Is either: (i) Unconditional, or (ii) A contingent obligation of the U.S. government or its agencies, the enforceability of which is dependent upon some affirmative action on the part of the beneficiary of the guarantee or a third party (for example, meeting servicing requirements); (3) Covers all or a pro rata portion of all contractual payments of the obligated party on the reference exposure; (4) Gives the beneficiary a direct claim against the protection provider; (5) Is not unilaterally cancelable by the protection provider for reasons other than the breach of the contract by the beneficiary; (6) Except for a guarantee by a sovereign, is legally enforceable against the protection provider in a jurisdiction where the protection provider has sufficient assets against which a judgment may be attached and enforced; (7) Requires the protection provider to make payment to the beneficiary on the occurrence of a default (as defined in the guarantee) of the obligated party on the reference exposure in a timely manner without the beneficiary first having to take legal actions to pursue the obligor for payment; (8) Does not increase the beneficiary’s cost of credit protection on the E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52850 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules guarantee in response to deterioration in the credit quality of the reference exposure; and (9) Is not provided by an affiliate of the [BANK], unless the affiliate is an insured depository institution, foreign bank, securities broker or dealer, or insurance company that: (i) Does not control the [BANK]; and (ii) Is subject to consolidated supervision and regulation comparable to that imposed on depository institutions, U.S. securities brokerdealers, or U.S. insurance companies (as the case may be). Eligible guarantor means: (1) A sovereign, the Bank for International Settlements, the International Monetary Fund, the European Central Bank, the European Commission, a Federal Home Loan Bank, Federal Agricultural Mortgage Corporation (Farmer Mac), a multilateral development bank (MDB), a depository institution, a bank holding company, a savings and loan holding company, a credit union, or a foreign bank; or (2) An entity (other than a special purpose entity): (i) That at the time the guarantee is issued or anytime thereafter, has issued and outstanding an unsecured debt security without credit enhancement that is investment grade; (ii) Whose creditworthiness is not positively correlated with the credit risk of the exposures for which it has provided guarantees; and (iii) That is not an insurance company engaged predominately in the business of providing credit protection (such as a monoline bond insurer or re-insurer). Eligible margin loan means an extension of credit where: (1) The extension of credit is collateralized exclusively by liquid and readily marketable debt or equity securities, or gold; (2) The collateral is marked-to-market daily, and the transaction is subject to daily margin maintenance requirements; (3) The extension of credit is conducted under an agreement that provides the [BANK] the right to accelerate and terminate the extension of credit and to liquidate or set-off collateral promptly upon an event of default (including upon an event of receivership, insolvency, liquidation, conservatorship, or similar proceeding) of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions; 1 and 1 This requirement is met where all transactions under the agreement are (i) executed under U.S. law and (ii) constitute ‘‘securities contracts’’ under VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (4) The [BANK] has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that the agreement meets the requirements of paragraph (3) of this definition and is legal, valid, binding, and enforceable under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the DoddFrank Act, or under any similar insolvency law applicable to GSEs. Eligible servicer cash advance facility means a servicer cash advance facility in which: (1) The servicer is entitled to full reimbursement of advances, except that a servicer may be obligated to make non-reimbursable advances for a particular underlying exposure if any such advance is contractually limited to an insignificant amount of the outstanding principal balance of that exposure; (2) The servicer’s right to reimbursement is senior in right of payment to all other claims on the cash flows from the underlying exposures of the securitization; and (3) The servicer has no legal obligation to, and does not make advances to the securitization if the servicer concludes the advances are unlikely to be repaid. Equity derivative contract means an equity-linked swap, purchased equitylinked option, forward equity-linked contract, or any other instrument linked to equities that gives rise to similar counterparty credit risks. Equity exposure means: (1) A security or instrument (whether voting or non-voting) that represents a direct or an indirect ownership interest in, and is a residual claim on, the assets and income of a company, unless: (i) The issuing company is consolidated with the [BANK] under GAAP; (ii) The [BANK] is required to deduct the ownership interest from tier 1 or tier 2 capital under this [PART]; (iii) The ownership interest incorporates a payment or other similar obligation on the part of the issuing company (such as an obligation to make periodic payments); or (iv) The ownership interest is a securitization exposure; section 555 of the Bankruptcy Code (11 U.S.C. 555), qualified financial contracts under section 11(e)(8) of the Federal Deposit Insurance Act, or netting contracts between or among financial institutions under sections 401–407 of the Federal Deposit Insurance Corporation Improvement Act or the Federal Reserve Board’s Regulation EE (12 CFR part 231). PO 00000 Frm 00060 Fmt 4701 Sfmt 4702 (2) A security or instrument that is mandatorily convertible into a security or instrument described in paragraph (1) of this definition; (3) An option or warrant that is exercisable for a security or instrument described in paragraph (1) of this definition; or (4) Any other security or instrument (other than a securitization exposure) to the extent the return on the security or instrument is based on the performance of a security or instrument described in paragraph (1) of this definition. ERISA means the Employee Retirement Income and Security Act of 1974 (29 U.S.C. 1002). Exchange rate derivative contract means a cross-currency interest rate swap, forward foreign-exchange contract, currency option purchased, or any other instrument linked to exchange rates that gives rise to similar counterparty credit risks. Executive officer means a person who holds the title or, without regard to title, salary, or compensation, performs the function of one or more of the following positions: president, chief executive officer, executive chairman, chief operating officer, chief financial officer, chief investment officer, chief legal officer, chief lending officer, chief risk officer, or head of a major business line, and other staff that the board of directors of the [BANK] deems to have equivalent responsibility. Expected credit loss (ECL) means: (1) For a wholesale exposure to a nondefaulted obligor or segment of nondefaulted retail exposures that is carried at fair value with gains and losses flowing through earnings or that is classified as held-for-sale and is carried at the lower of cost or fair value with losses flowing through earnings, zero. (2) For all other wholesale exposures to non-defaulted obligors or segments of non-defaulted retail exposures, the product of the probability of default (PD) times the loss given default (LGD) times the exposure at default (EAD) for the exposure or segment. (3) For a wholesale exposure to a defaulted obligor or segment of defaulted retail exposures, the [BANK]’s impairment estimate for allowance purposes for the exposure or segment. (4) Total ECL is the sum of expected credit losses for all wholesale and retail exposures other than exposures for which the [BANK] has applied the double default treatment in § ll.135 of subpart E of this part. Exposure amount means: (1) For the on-balance sheet component of an exposure (other than an OTC derivative contract; a repo-style transaction or an eligible margin loan E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules for which the [BANK] determines the exposure amount under § ll.37 of subpart D of this part; cleared transaction; default fund contribution; or a securitization exposure), exposure amount means the [BANK]’s carrying value of the exposure. (2) For the off-balance sheet component of an exposure (other than an OTC derivative contract; a repo-style transaction or an eligible margin loan for which the [BANK] calculates the exposure amount under § ll.37 of subpart D of this part; cleared transaction, default fund contribution or a securitization exposure), exposure amount means the notional amount of the off-balance sheet component multiplied by the appropriate credit conversion factor (CCF) in § ll.33 of subpart D of this part. (3) If the exposure is an OTC derivative contract or derivative contract that is a cleared transaction, the exposure amount determined under § ll.34 of subpart D of this part. (4) If the exposure is an eligible margin loan or repo-style transaction (including a cleared transaction) for which the [BANK] calculates the exposure amount as provided in § ll.37 of subpart D of this part, the exposure amount determined under § ll.37 of subpart D. (5) If the exposure is a securitization exposure, the exposure amount determined under § ll.42 of subpart D of this part. Federal Deposit Insurance Act means the Federal Deposit Insurance Act (12 U.S.C. 1813). Federal Deposit Insurance Corporation Improvement Act means the Federal Deposit Insurance Corporation Improvement Act of 1991 (12 U.S.C. 4401). Financial collateral means collateral: (1) In the form of: (i) Cash on deposit with the [BANK] (including cash held for the [BANK] by a third-party custodian or trustee); (ii) Gold bullion; (iii) Long-term debt securities that are not resecuritization exposures and that are investment grade; (iv) Short-term debt instruments that are not resecuritization exposures and that are investment grade; (v) Equity securities that are publiclytraded; (vi) Convertible bonds that are publicly-traded; or (vii) Money market fund shares and other mutual fund shares if a price for the shares is publicly quoted daily; and (2) In which the [BANK] has a perfected, first-priority security interest or, outside of the United States, the legal equivalent thereof (with the exception of cash on deposit and notwithstanding VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 the prior security interest of any custodial agent). Financial institution means: (1)(i) A bank holding company, savings and loan holding company, nonbank financial institution supervised by the Board under Title I of the Dodd-Frank Act, depository institution, foreign bank, credit union, insurance company, or securities firm; (ii) A commodity pool as defined in section 1a(10) of the Commodity Exchange Act (7 U.S.C. 1a(10)); (iii) An entity that is a covered fund for purposes of section 13 of the Bank Holding Company Act (12 U.S.C. 1851(h)(2)) and regulations issued thereunder; (iv) An employee benefit plan as defined in paragraphs (3) and (32) of section 3 of the Employee Retirement Income and Security Act of 1974 (29 U.S.C. 1002) (other than an employee benefit plan established by [BANK] for the benefit of its employees or the employees of its affiliates); (v) Any other company predominantly engaged in the following activities: (A) Lending money, securities or other financial instruments, including servicing loans; (B) Insuring, guaranteeing, indemnifying against loss, harm, damage, illness, disability, or death, or issuing annuities; (C) Underwriting, dealing in, making a market in, or investing as principal in securities or other financial instruments; (D) Asset management activities (not including investment or financial advisory activities); or (E) Acting as a futures commission merchant. (vi) Any entity not domiciled in the United States (or a political subdivision thereof) that would be covered by any of paragraphs (1)(i) through (v) of this definition if such entity were domiciled in the United States; or (vii) Any other company that the [AGENCY] may determine is a financial institution based on the nature and scope of its activities. (2) For the purposes of this definition, a company is ‘‘predominantly engaged’’ in an activity or activities if: (i) 85 percent or more of the total consolidated annual gross revenues (as determined in accordance with applicable accounting standards) of the company in either of the two most recent calendar years were derived, directly or indirectly, by the company on a consolidated basis from the activities; or (ii) 85 percent or more of the company’s consolidated total assets (as determined in accordance with PO 00000 Frm 00061 Fmt 4701 Sfmt 4702 52851 applicable accounting standards) as of the end of either of the two most recent calendar years were related to the activities. (3) For the purpose of this [PART], ‘‘financial institution’’ does not include the following entities: (i) GSEs; (ii) Entities described in section 13(d)(1)(E) of the Bank Holding Company Act (12 U.S.C. 1851(d)(1)(E)) and regulations issued thereunder (exempted entities) and entities that are predominantly engaged in providing advisory and related services to exempted entities; and (iii) Entities designated as Community Development Financial Institutions (CDFIs) under 12 U.S.C. 4701 et seq. and 12 CFR part 1805. First-lien residential mortgage exposure means a residential mortgage exposure secured by a first lien or a residential mortgage exposure secured by first and junior lien(s) where no other party holds an intervening lien. Foreign bank means a foreign bank as defined in § 211.2 of the Federal Reserve Board’s Regulation K (12 CFR 211.2) (other than a depository institution). Forward agreement means a legally binding contractual obligation to purchase assets with certain drawdown at a specified future date, not including commitments to make residential mortgage loans or forward foreign exchange contracts. GAAP means generally accepted accounting principles as used in the United States. Gain-on-sale means an increase in the equity capital of a [BANK] (as reported on Schedule RC of the Call Report or Schedule HC of the FR Y–9C) resulting from a securitization (other than an increase in equity capital resulting from the [BANK]’s receipt of cash in connection with the securitization). General obligation means a bond or similar obligation that is backed by the full faith and credit of a public sector entity (PSE). Government-sponsored entity (GSE) means an entity established or chartered by the U.S. government to serve public purposes specified by the U.S. Congress but whose debt obligations are not explicitly guaranteed by the full faith and credit of the U.S. government. Guarantee means a financial guarantee, letter of credit, insurance, or other similar financial instrument (other than a credit derivative) that allows one party (beneficiary) to transfer the credit risk of one or more specific exposures (reference exposure) to another party (protection provider). High volatility commercial real estate (HVCRE) exposure means a credit E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52852 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules facility that finances or has financed the acquisition, development, or construction (ADC) of real property, unless the facility finances: (1) One- to four-family residential properties; or (2) Commercial real estate projects in which: (i) The loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio in the [AGENCY]’s real estate lending standards at 12 CFR part 34, subpart D and 12 CFR part 160, subparts A and B (OCC); 12 CFR part 208, Appendix C (Board); 12 CFR part 365, subpart D and 12 CFR 390.264 and 390.265 (FDIC); (ii) The borrower has contributed capital to the project in the form of cash or unencumbered readily marketable assets (or has paid development expenses out-of-pocket) of at least 15 percent of the real estate’s appraised ‘‘as completed’’ value; and (iii) The borrower contributed the amount of capital required by paragraph (2)(ii) of this definition before the [BANK] advances funds under the credit facility, and the capital contributed by the borrower, or internally generated by the project, is contractually required to remain in the project throughout the life of the project. The life of a project concludes only when the credit facility is converted to permanent financing or is sold or paid in full. Permanent financing may be provided by the [BANK] that provided the ADC facility as long as the permanent financing is subject to the [BANK]’s underwriting criteria for long-term mortgage loans. Home country means the country where an entity is incorporated, chartered, or similarly established. Interest rate derivative contract means a single-currency interest rate swap, basis swap, forward rate agreement, purchased interest rate option, whenissued securities, or any other instrument linked to interest rates that gives rise to similar counterparty credit risks. International Lending Supervision Act means the International Lending Supervision Act of 1983 (12 U.S.C. 3907). Investing bank means, with respect to a securitization, a [BANK] that assumes the credit risk of a securitization exposure (other than an originating [BANK] of the securitization). In the typical synthetic securitization, the investing [BANK] sells credit protection on a pool of underlying exposures to the originating [BANK]. Investment fund means a company: (1) Where all or substantially all of the assets of the company are financial assets; and VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) That has no material liabilities. Investment grade means that the entity to which the [BANK] is exposed through a loan or security, or the reference entity with respect to a credit derivative, has adequate capacity to meet financial commitments for the projected life of the asset or exposure. Such an entity or reference entity has adequate capacity to meet financial commitments if the risk of its default is low and the full and timely repayment of principal and interest is expected. Investment in the capital of an unconsolidated financial institution means a net long position in an instrument that is recognized as capital for regulatory purposes by the primary supervisor of an unconsolidated regulated financial institutions and in an instrument that is part of the GAAP equity of an unconsolidated unregulated financial institution, including direct, indirect, and synthetic exposures to capital instruments, excluding underwriting positions held by the [BANK] for five business days or less.2 An indirect exposure results from the [BANK]’s investment in an unconsolidated entity that has an exposure to a capital instrument of a financial institution. A synthetic exposure results from the [BANK]’s investment in an instrument where the value of such instrument is linked to the value of a capital instrument of a financial institution. For purposes of this definition, the amount of the exposure resulting from the investment in the capital of an unconsolidated financial institution is the [BANK]’s loss on such exposure should the underlying capital instrument have a value of zero. In addition, for purposes of this definition: (1) The net long position is the gross long position in the exposure to the capital of the financial institution (including covered positions under subpart F of this part) net of short positions in the same exposure where the maturity of the short position either matches the maturity of the long position or has a residual maturity of at least one year; (2) Long and short positions in the same index without a maturity date are considered to have matching maturity. Gross long positions in investments in the capital instruments of unconsolidated financial institutions resulting from holdings of index securities may be netted against short positions in the same underlying index. 2 If the [BANK] is an underwriter of a failed underwriting, the [BANK] can request approval from its primary federal supervisor to exclude underwriting positions related to such failed underwriting for a longer period of time. PO 00000 Frm 00062 Fmt 4701 Sfmt 4702 However, short positions in indexes that are hedging long cash or synthetic positions can be decomposed to provide recognition of the hedge. More specifically, the portion of the index that is composed of the same underlying exposure that is being hedged may be used to offset the long position as long as both the exposure being hedged and the short position in the index are positions subject to the market risk rule, the positions are fair valued on the banking organization’s balance sheet, and the hedge is deemed effective by the banking organization’s internal control processes assessed by the primary supervisor of the banking organization; and (3) Instead of looking through and monitoring its exact exposure to the capital of unconsolidated financial institutions included in an index security, a [BANK] may, with the prior approval of the [AGENCY], use a conservative estimate of the amount of its investment in the capital of unconsolidated financial institutions held through the index security. Junior-lien residential mortgage exposure means a residential mortgage exposure that is not a first-lien residential mortgage exposure. Main index means the Standard & Poor’s 500 Index, the FTSE All-World Index, and any other index for which the [BANK] can demonstrate to the satisfaction of the [AGENCY] that the equities represented in the index have comparable liquidity, depth of market, and size of bid-ask spreads as equities in the Standard & Poor’s 500 Index and FTSE All-World Index. Market risk [BANK] means a [BANK] that is described in § ll.201(b) of subpart F of this part. Money market fund means an investment fund that is subject to 17 CFR 270.2a–7 or any foreign equivalent thereof. Mortgage servicing assets (MSAs) means the contractual rights owned by a [BANK] to service for a fee mortgage loans that are owned by others. Multilateral development bank (MDB) means the International Bank for Reconstruction and Development, the Multilateral Investment Guarantee Agency, the International Finance Corporation, the Inter-American Development Bank, the Asian Development Bank, the African Development Bank, the European Bank for Reconstruction and Development, the European Investment Bank, the European Investment Fund, the Nordic Investment Bank, the Caribbean Development Bank, the Islamic Development Bank, the Council of Europe Development Bank, and any E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules other multilateral lending institution or regional development bank in which the U.S. government is a shareholder or contributing member or which the [AGENCY] determines poses comparable credit risk. National Bank Act means the National Bank Act (12 U.S.C. 24). Netting set means a group of transactions with a single counterparty that are subject to a qualifying master netting agreement or a qualifying crossproduct master netting agreement. For purposes of calculating risk-based capital requirements using the internal models methodology in subpart E, a transaction— (1) That is not subject to such a master netting agreement or (2) Where the [BANK] has identified specific wrong-way risk is its own netting set. Non-significant investment in the capital of an unconsolidated financial institution means an investment where the [BANK] owns 10 percent or less of the issued and outstanding common shares of the unconsolidated financial institution. Nth-to-default credit derivative means a credit derivative that provides credit protection only for the nth-defaulting reference exposure in a group of reference exposures. Operating entity means a company established to conduct business with clients with the intention of earning a profit in its own right. Original maturity with respect to an off-balance sheet commitment means the length of time between the date a commitment is issued and: (1) For a commitment that is not subject to extension or renewal, the stated expiration date of the commitment; or (2) For a commitment that is subject to extension or renewal, the earliest date on which the [BANK] can, at its option, unconditionally cancel the commitment. Originating [BANK], with respect to a securitization, means a [BANK] that: (1) Directly or indirectly originated or securitized the underlying exposures included in the securitization; or (2) Serves as an ABCP program sponsor to the securitization. Over-the-counter (OTC) derivative contract means a derivative contract that is not a cleared transaction. An OTC derivative includes a transaction: (1) Between a [BANK] that is a clearing member and a counterparty where the [BANK] is acting as a financial intermediary and enters into a cleared transaction with a CCP that offsets the transaction with the counterparty; or VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) In which a [BANK] that is a clearing member provides a CCP a guarantee on the performance of the counterparty to the transaction. Performance standby letter of credit (or performance bond) means an irrevocable obligation of a [BANK] to pay a third-party beneficiary when a customer (account party) fails to perform on any contractual nonfinancial or commercial obligation. To the extent permitted by law or regulation, performance standby letters of credit include arrangements backing, among other things, subcontractors’ and suppliers’ performance, labor and materials contracts, and construction bids. Pre-sold construction loan means any one-to-four family residential construction loan to a builder that meets the requirements of section 618(a)(1) or (2) of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991 and the following criteria: (1) The loan is made in accordance with prudent underwriting standards; (2) The purchaser is an individual(s) that intends to occupy the residence and is not a partnership, joint venture, trust, corporation, or any other entity (including an entity acting as a sole proprietorship) that is purchasing one or more of the residences for speculative purposes; (3) The purchaser has entered into a legally binding written sales contract for the residence; (4) The purchaser has not terminated the contract; however, if the purchaser terminates the sales contract the [BANK] must immediately apply a 100 percent risk weight to the loan and report the revised risk weight in [BANK]’s next quarterly [REGULATORY REPORT]; (5) The purchaser of the residence has a firm written commitment for permanent financing of the residence upon completion; (6) The purchaser has made a substantial earnest money deposit of no less than 3 percent of the sales price, which is subject to forfeiture if the purchaser terminates the sales contract; provided that, the earnest money deposit shall not be subject to forfeiture by reason of breach or termination of the sales contract on the part of the builder; (7) The earnest money deposit must be held in escrow by the [BANK] or an independent party in a fiduciary capacity, and the escrow agreement must provide that in the event of default the escrow funds shall be used to defray any cost incurred by [BANK] relating to any cancellation of the sales contract by the purchaser of the residence; PO 00000 Frm 00063 Fmt 4701 Sfmt 4702 52853 (8) The builder must incur at least the first 10 percent of the direct costs of construction of the residence (that is, actual costs of the land, labor, and material) before any drawdown is made under the loan; (9) The loan may not exceed 80 percent of the sales price of the presold residence; and (10) The loan is not more than 90 days past due, or on nonaccrual. Private company means a company that is not a public company. Private sector credit exposure means an exposure to a company or an individual that is included in credit risk-weighted assets and is not an exposure to a sovereign, the Bank for International Settlements, the European Central Bank, the European Commission, the International Monetary Fund, a MDB, a PSE, or a GSE. Protection amount (P) means, with respect to an exposure hedged by an eligible guarantee or eligible credit derivative, the effective notional amount of the guarantee or credit derivative, reduced to reflect any currency mismatch, maturity mismatch, or lack of restructuring coverage (as provided in § ll.36 of subpart D of this part or § ll.134 of subpart E, as appropriate). Public company means a company that has issued publicly-traded debt or equity. Publicly-traded means traded on: (1) Any exchange registered with the SEC as a national securities exchange under section 6 of the Securities Exchange Act; or (2) Any non-U.S.-based securities exchange that: (i) Is registered with, or approved by, a national securities regulatory authority; and (ii) Provides a liquid, two-way market for the instrument in question. Public sector entity (PSE) means a state, local authority, or other governmental subdivision below the sovereign level. Qualifying central counterparty (QCCP) means a central counterparty that: (1) Is a designated financial market utility (FMU) under Title VIII of the Dodd-Frank Act; (2) If not located in the United States, is regulated and supervised in a manner equivalent to a designated FMU; or (3) Meets the following standards: (i) The central counterparty requires all parties to contracts cleared by the counterparty to be fully collateralized on a daily basis; (ii) The [BANK] demonstrates to the satisfaction of the [AGENCY] that the central counterparty: (A) Is in sound financial condition; E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52854 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (B) Is subject to supervision by the Board, the CFTC, or the Securities Exchange Commission (SEC), or if the central counterparty is not located in the United States, is subject to effective oversight by a national supervisory authority in its home country; and (C) Meets or exceeds: (1) The risk-management standards for central counterparties set forth in regulations established by the Board, the CFTC, or the SEC under Title VII or Title VIII of the Dodd-Frank Act; or (2) If the central counterparty is not located in the United States, similar risk-management standards established under the law of its home country that are consistent with international standards for central counterparty risk management as established by the relevant standard setting body of the Bank of International Settlements; (4) Provides the [BANK] with the central counterparty’s hypothetical capital requirement or the information necessary to calculate such hypothetical capital requirement, and other information the [BANK] is required to obtain under § ll.35(d)(3) of this part; (5) Makes available to the [AGENCY] and the CCP’s regulator the information described in paragraph (4) of this definition; and (6) Has not otherwise been determined by the [AGENCY] to not be QCCP due to its financial condition, risk profile, failure to meet supervisory risk management standards, or other weaknesses or supervisory concerns that are inconsistent with the risk weight assigned to qualifying central counterparties under § ll.35 of subpart D of this part; and (7) If a [BANK] determines that a CCP ceases to be a QCCP due to the failure of the CCP to satisfy one or more of the requirements set forth at paragraphs (1) through (6) of this definition, the [BANK] may continue to treat the CCP as a QCCP for up to three months following the determination. If the CCP fails to remedy the relevant deficiency within three months after the initial determination, or the CCP fails to satisfy the requirements set forth in paragraphs (1) through (6) of this definition continuously for a three month period after remedying the relevant deficiency, a [BANK] may not treat the CCP as a QCCP for the purposes of this [PART] until after the [BANK] has determined that the CCP has satisfied the requirements in paragraphs (1) through (6) of this definition for three continuous months. Qualifying master netting agreement means any written, legally enforceable agreement provided that: VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (1) The agreement creates a single legal obligation for all individual transactions covered by the agreement upon an event of default, including receivership, insolvency, liquidation, or similar proceeding, of the counterparty; (2) The agreement provides the [BANK] the right to accelerate, terminate, and close-out on a net basis all transactions under the agreement and to liquidate or set-off collateral promptly upon an event of default, including upon an event of receivership, insolvency, liquidation, or similar proceeding, of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs; (3) The [BANK] has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that: (i) The agreement meets the requirements of paragraph (2) of this definition; and (ii) In the event of a legal challenge (including one resulting from default or from receivership, insolvency, liquidation, or similar proceeding) the relevant court and administrative authorities would find the agreement to be legal, valid, binding, and enforceable under the law of the relevant jurisdictions; (4) The [BANK] establishes and maintains procedures to monitor possible changes in relevant law and to ensure that the agreement continues to satisfy the requirements of this definition; and (5) The agreement does not contain a walkaway clause (that is, a provision that permits a non-defaulting counterparty to make a lower payment than it otherwise would make under the agreement, or no payment at all, to a defaulter or the estate of a defaulter, even if the defaulter or the estate of the defaulter is a net creditor under the agreement). Regulated financial institution means a financial institution subject to consolidated supervision and regulation comparable to that imposed on the following U.S. financial institutions: depository institutions, depository institution holding companies, nonbank financial companies supervised by the Board, designated financial market utilities, securities broker-dealers, credit unions, or insurance companies. PO 00000 Frm 00064 Fmt 4701 Sfmt 4702 Repo-style transaction means a repurchase or reverse repurchase transaction, or a securities borrowing or securities lending transaction, including a transaction in which the [BANK] acts as agent for a customer and indemnifies the customer against loss, provided that: (1) The transaction is based solely on liquid and readily marketable securities, cash, or gold; (2) The transaction is marked-tomarket daily and subject to daily margin maintenance requirements; (3)(i) The transaction is a ‘‘securities contract’’ or ‘‘repurchase agreement’’ under section 555 or 559, respectively, of the Bankruptcy Code (11 U.S.C. 555 or 559), a qualified financial contract under section 11(e)(8) of the Federal Deposit Insurance Act, or a netting contract between or among financial institutions under sections 401–407 of the Federal Deposit Insurance Corporation Improvement Act or the Federal Reserve Board’s Regulation EE (12 CFR part 231); or (ii) If the transaction does not meet the criteria set forth in paragraph (3)(i) of this definition, then either: (A) The transaction is executed under an agreement that provides the [BANK] the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set-off collateral promptly upon an event of default (including upon an event of receivership, insolvency, liquidation, or similar proceeding) of the counterparty, provided that, in any such case, any exercise of rights under the agreement will not be stayed or avoided under applicable law in the relevant jurisdictions, other than in receivership, conservatorship, resolution under the Federal Deposit Insurance Act, Title II of the Dodd-Frank Act, or under any similar insolvency law applicable to GSEs; or (B) The transaction is: (1) Either overnight or unconditionally cancelable at any time by the [BANK]; and (2) Executed under an agreement that provides the [BANK] the right to accelerate, terminate, and close-out the transaction on a net basis and to liquidate or set-off collateral promptly upon an event of counterparty default; and (4) The [BANK] has conducted sufficient legal review to conclude with a well-founded basis (and maintains sufficient written documentation of that legal review) that the agreement meets the requirements of paragraph (3) of this definition and is legal, valid, binding, and enforceable under applicable law in the relevant jurisdictions. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Resecuritization means a securitization in which one or more of the underlying exposures is a securitization exposure. Resecuritization exposure means: (1) An on- or off-balance sheet exposure to a resecuritization; (2) An exposure that directly or indirectly references a resecuritization exposure. (3) An exposure to an asset-backed commercial paper program is not a resecuritization exposure if either: (i) The program-wide credit enhancement does not meet the definition of a resecuritization exposure; or (ii) The entity sponsoring the program fully supports the commercial paper through the provision of liquidity so that the commercial paper holders effectively are exposed to the default risk of the sponsor instead of the underlying exposures. Residential mortgage exposure means an exposure (other than a securitization exposure, equity exposure, statutory multifamily mortgage, or presold construction loan) that is: (1) An exposure that is primarily secured by a first or subsequent lien on one-to-four family residential property; or (2)(i) An exposure with an original and outstanding amount of $1 million or less that is primarily secured by a first or subsequent lien on residential property that is not one-to-four family; and (ii) For purposes of calculating capital requirements under subpart E, is managed as part of a segment of exposures with homogeneous risk characteristics and not on an individualexposure basis. Revenue obligation means a bond or similar obligation that is an obligation of a PSE, but which the PSE is committed to repay with revenues from the specific project financed rather than general tax funds. Savings and loan holding company means a savings and loan holding company as defined in section 10 of the Home Owners’ Loan Act (12 U.S.C. 1467a). Securities and Exchange Commission (SEC) means the U.S. Securities and Exchange Commission. Securities Exchange Act means the Securities Exchange Act of 1934 (15 U.S.C. 78). Securitization exposure means: (1) An on-balance sheet or off-balance sheet credit exposure (including creditenhancing representations and warranties) that arises from a traditional securitization or synthetic securitization (including a resecuritization), or VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (2) An exposure that directly or indirectly references a securitization exposure described in paragraph (1) of this definition. Securitization special purpose entity (securitization SPE) means a corporation, trust, or other entity organized for the specific purpose of holding underlying exposures of a securitization, the activities of which are limited to those appropriate to accomplish this purpose, and the structure of which is intended to isolate the underlying exposures held by the entity from the credit risk of the seller of the underlying exposures to the entity. Servicer cash advance facility means a facility under which the servicer of the underlying exposures of a securitization may advance cash to ensure an uninterrupted flow of payments to investors in the securitization, including advances made to cover foreclosure costs or other expenses to facilitate the timely collection of the underlying exposures. Significant investment in the capital of unconsolidated financial institutions means an investment where the [BANK] owns more than 10 percent of the issued and outstanding common shares of the unconsolidated financial institution. Small Business Act means the Small Business Act (15 U.S.C. 632). Small Business Investment Act means the Small Business Investment Act of 1958 (15 U.S.C. 682). Sovereign means a central government (including the U.S. government) or an agency, department, ministry, or central bank of a central government. Sovereign default means noncompliance by a sovereign with its external debt service obligations or the inability or unwillingness of a sovereign government to service an existing loan according to its original terms, as evidenced by failure to pay principal and interest timely and fully, arrearages, or restructuring. Sovereign exposure means: (1) A direct exposure to a sovereign; or (2) An exposure directly and unconditionally backed by the full faith and credit of a sovereign. Specific wrong-way risk means wrongway risk that arises when either: (1) The counterparty and issuer of the collateral supporting the transaction; or (2) The counterparty and the reference asset of the transaction, are affiliates or are the same entity. Standardized market risk-weighted assets means the standardized measure for market risk calculated under § ll.204 of subpart F of this part multiplied by 12.5. PO 00000 Frm 00065 Fmt 4701 Sfmt 4702 52855 Standardized total risk-weighted assets means: (1) The sum of: (i) Total risk-weighted assets for general credit risk as calculated under § ll.31 of subpart D of this part; (ii) Total risk-weighted assets for cleared transactions and default fund contributions as calculated under § ll.35 of subpart D of this part; (iii) Total risk-weighted assets for unsettled transactions as calculated under § ll.38 of subpart D of this part; (iv) Total risk-weighted assets for securitization exposures as calculated under § ll.42 of subpart D of this part; (v) Total risk-weighted assets for equity exposures as calculated under § ll.52 and § ll.53 of subpart D of this part; and (vi) For a market risk [BANK] only, standardized market risk-weighted assets; minus (2) Any amount of the [BANK]’s allowance for loan and lease losses that is not included in tier 2 capital. Statutory multifamily mortgage means a loan secured by a multifamily residential property that meets the requirements under section 618(b)(1) of the Resolution Trust Corporation Refinancing, Restructuring, and Improvement Act of 1991, and that meets the following criteria: (1) The loan is made in accordance with prudent underwriting standards; (2) The loan-to-value (LTV) ratio of the loan, calculated in accordance with § ll.32(g)(3) of subpart D of this part, does not exceed 80 percent (or 75 percent if the loan is based on an interest rate that changes over the term of the loan); (3) All principal and interest payments on the loan must have been made on time for at least one year prior to applying a 50 percent risk weight to the loan, or in the case where an existing owner is refinancing a loan on the property, all principal and interest payments on the loan being refinanced must have been made on time for at least one year prior to applying a 50 percent risk weight to the loan; (4) Amortization of principal and interest on the loan must occur over a period of not more than 30 years and the minimum original maturity for repayment of principal must not be less than 7 years; (5) Annual net operating income (before debt service on the loan) generated by the property securing the loan during its most recent fiscal year must not be less than 120 percent of the loan’s current annual debt service (or 115 percent of current annual debt service if the loan is based on an interest rate that changes over the term of the E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52856 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules loan) or, in the case of a cooperative or other not-for-profit housing project, the property must generate sufficient cash flow to provide comparable protection to the [BANK]; and (6) The loan is not more than 90 days past due, or on nonaccrual. Subsidiary means, with respect to a company, a company controlled by that company. Synthetic securitization means a transaction in which: (1) All or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties through the use of one or more credit derivatives or guarantees (other than a guarantee that transfers only the credit risk of an individual retail exposure); (2) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority; (3) Performance of the securitization exposures depends upon the performance of the underlying exposures; and (4) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities). Tier 1 capital means the sum of common equity tier 1 capital and additional tier 1 capital. Tier 1 minority interest means the tier 1 capital of a consolidated subsidiary of a [BANK] that is not owned by the [BANK]. Tier 2 capital is defined in § ll.20 of subpart C of this part. Total capital means the sum of tier 1 capital and tier 2 capital. Total capital minority interest means the total capital of a consolidated subsidiary of a [BANK] that is not owned by the [BANK]. Total leverage exposure means the sum of the following: (1) The balance sheet carrying value of all of the [BANK]’s on-balance sheet assets, less amounts deducted from tier 1 capital; (2) The potential future exposure amount for each derivative contract to which the [BANK] is a counterparty (or each single-product netting set of such transactions) determined in accordance with § ll.34 of this part; (3) 10 percent of the notional amount of unconditionally cancellable commitments made by the [BANK]; and (4) The notional amount of all other off-balance sheet exposures of the [BANK] (excluding securities lending, securities borrowing, reverse repurchase transactions, derivatives and VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 unconditionally cancellable commitments). Traditional securitization means a transaction in which: (1) All or a portion of the credit risk of one or more underlying exposures is transferred to one or more third parties other than through the use of credit derivatives or guarantees; (2) The credit risk associated with the underlying exposures has been separated into at least two tranches reflecting different levels of seniority; (3) Performance of the securitization exposures depends upon the performance of the underlying exposures; (4) All or substantially all of the underlying exposures are financial exposures (such as loans, commitments, credit derivatives, guarantees, receivables, asset-backed securities, mortgage-backed securities, other debt securities, or equity securities); (5) The underlying exposures are not owned by an operating company; (6) The underlying exposures are not owned by a small business investment company described in section 302 of the Small Business Investment Act; (7) The underlying exposures are not owned by a firm an investment in which qualifies as a community development investment under section 24 (Eleventh) of the National Bank Act; (8) The [AGENCY] may determine that a transaction in which the underlying exposures are owned by an investment firm that exercises substantially unfettered control over the size and composition of its assets, liabilities, and off-balance sheet exposures is not a traditional securitization based on the transaction’s leverage, risk profile, or economic substance; (9) The [AGENCY] may deem a transaction that meets the definition of a traditional securitization, notwithstanding paragraph (5), (6), or (7) of this definition, to be a traditional securitization based on the transaction’s leverage, risk profile, or economic substance; and (10) The transaction is not: (i) An investment fund; (ii) A collective investment fund (as defined in 12 CFR 208.34 (Board), 12 CFR 9.18 (OCC), and 12 CFR 344.3 (FDIC)); (iii) A pension fund regulated under the ERISA or a foreign equivalent thereof; or (iv) Regulated under the Investment Company Act of 1940 (15 U.S.C. 80a–1) or a foreign equivalent thereof. Tranche means all securitization exposures associated with a securitization that have the same seniority level. PO 00000 Frm 00066 Fmt 4701 Sfmt 4702 Two-way market means a market where there are independent bona fide offers to buy and sell so that a price reasonably related to the last sales price or current bona fide competitive bid and offer quotations can be determined within one day and settled at that price within a relatively short time frame conforming to trade custom. Unconditionally cancelable means with respect to a commitment, that a [BANK] may, at any time, with or without cause, refuse to extend credit under the commitment (to the extent permitted under applicable law). Underlying exposures means one or more exposures that have been securitized in a securitization transaction. U.S. Government agency means an instrumentality of the U.S. Government whose obligations are fully and explicitly guaranteed as to the timely payment of principal and interest by the full faith and credit of the U.S. Government. Value-at-Risk (VaR) means the estimate of the maximum amount that the value of one or more exposures could decline due to market price or rate movements during a fixed holding period within a stated confidence interval. Wrong-way risk means the risk that arises when an exposure to a particular counterparty is positively correlated with the probability of default of such counterparty itself. Subpart B—Capital Ratio Requirements and Buffers § ll.10 Minimum capital requirements. (a) Minimum capital requirements. A [BANK] must maintain the following minimum capital ratios: (1) A common equity tier 1 capital ratio of 4.5 percent. (2) A tier 1 capital ratio of 6 percent. (3) A total capital ratio of 8 percent. (4) A leverage ratio of 4 percent. (5) For advanced approaches [BANK]s, a supplementary leverage ratio of 3 percent. (b) Standardized capital ratio calculations. All [BANK]s must calculate standardized capital ratios as follows: (1) Common equity tier 1 capital ratio. A [BANK]’s common equity tier 1 capital ratio is the ratio of the [BANK]’s common equity tier 1 capital to standardized total risk-weighted assets. (2) Tier 1 capital ratio. A [BANK]’s tier 1 capital ratio is the ratio of the [BANK]’s tier 1 capital to standardized total risk-weighted assets. (3) Total capital ratio. A [BANK]’s total capital ratio is the ratio of the E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules requirements in this [PART] a [BANK] must maintain capital commensurate with the level and nature of all risks to which the [BANK] is exposed. The supervisory evaluation of a [BANK]’s capital adequacy is based on an individual assessment of numerous factors, including those listed at 12 CFR 3.10 (for national banks), 12 CFR 167.3(c) (for Federal savings associations) and 12 CFR 208.4 (for state member banks). (2) A [BANK] must have a process for assessing its overall capital adequacy in relation to its risk profile and a comprehensive strategy for maintaining an appropriate level of capital. [BANK]’s total capital to standardized total risk-weighted assets. (4) Leverage ratio. A [BANK]’s leverage ratio is the ratio of the [BANK]’s tier 1 capital to the [BANK]’s average consolidated assets as reported on the [BANK]’s [REGULATORY REPORT] minus amounts deducted from tier 1 capital. (c) Advanced approaches capital ratio calculations. (1) Common equity tier 1 capital ratio. An advanced approaches [BANK]’s common equity tier 1 capital ratio is the lower of: (i) The ratio of the [BANK]’s common equity tier 1 capital to standardized total risk-weighted assets; and (ii) The ratio of the [BANK]’s common equity tier 1 capital to advanced approaches total risk-weighted assets. (2) Tier 1 capital ratio. An advanced approaches [BANK]’s tier 1 capital ratio is the lower of: (i) The ratio of the [BANK]’s tier 1 capital to standardized total riskweighted assets; and (ii) The ratio of the [BANK]’s tier 1 capital to advanced approaches total risk-weighted assets. (3) Total capital ratio. An advanced approaches [BANK]’s total capital ratio is the lower of: (i) The ratio of the [BANK]’s total capital to standardized total riskweighted assets; and (ii) The ratio of the [BANK]’s advanced-approaches-adjusted total capital to advanced approaches total risk-weighted assets. A [BANK]’s advanced-approaches-adjusted total capital is the [BANK]’s total capital after being adjusted as follows: (A) An advanced approaches [BANK] must deduct from its total capital any allowance for loan and lease losses included in its tier 2 capital in accordance with § ll.20(d)(3) of subpart C of this part; and (B) An advanced approaches [BANK] must add to its total capital any eligible credit reserves that exceed the [BANK]’s total expected credit losses to the extent that the excess reserve amount does not exceed 0.6 percent of the [BANK]’s credit risk-weighted assets. (4) Supplementary leverage ratio. An advanced approaches [BANK]’s supplementary leverage ratio is the simple arithmetic mean of the ratio of its tier 1 capital to total leverage exposure calculated as of the last day of each month in the reporting quarter. (d) Capital adequacy. (1) Notwithstanding the minimum (a) Capital conservation buffer. (1) Composition of the capital conservation buffer. The capital conservation buffer is composed solely of common equity tier 1 capital. (2) Definitions. For purposes of this section, the following definitions apply: (i) Eligible retained income. The eligible retained income of a [BANK] is the [BANK]’s net income for the four calendar quarters preceding the current calendar quarter, based on the [BANK]’s most recent quarterly [REGULATORY REPORT], net of any capital distributions and associated tax effects not already reflected in net income.1 (ii) Maximum payout ratio. The maximum payout ratio is the percentage of eligible retained income that a [BANK] can pay out in the form of capital distributions and discretionary bonus payments during the current calendar quarter. The maximum payout ratio is based on the [BANK]’s capital conservation buffer, calculated as of the last day of the previous calendar quarter, as set forth in Table 1. (iii) Maximum payout amount. A [BANK]’s maximum payout amount for the current calendar quarter is equal to the [BANK]’s eligible retained income, multiplied by the applicable maximum payout ratio, as set forth in Table 1. (3) Calculation of capital conservation buffer.2 A [BANK]’s capital conservation buffer is equal to the lowest of the following ratios, calculated as of the last day of the previous calendar quarter based on the [BANK]’s most recent [REGULATORY REPORT]: (i) The [BANK]’s common equity tier 1 capital ratio minus the [BANK]’s minimum common equity tier 1 capital 1 Net income, as reported in the [REGULATORY REPORT], reflects discretionary bonus payments and certain capital distributions that are expense items (and their associated tax effects). 2 For purposes of the capital conservation buffer calculations, a [BANK] must use standardized total risk weighted assets if it is a standardized approach [BANK] and it must use advanced total risk VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 § ll.11 Capital conservation buffer and countercyclical capital buffer amount. PO 00000 Frm 00067 Fmt 4701 Sfmt 4702 52857 ratio requirement under § ll.10 of this part; (ii) The [BANK]’s tier 1 capital ratio minus the [BANK]’s minimum tier 1 capital ratio requirement under § ll.10 of this part; and (iii) The [BANK]’s total capital ratio minus the [BANK]’s minimum total capital ratio requirement under § ll.10 of this part. (iv) If the [BANK]’s common equity tier 1, tier 1 or total capital ratio is less than or equal to the [BANK]’s minimum common equity tier 1, tier 1 or total capital ratio requirement under § ll.10 of this part, respectively, the [BANK]’s capital conservation buffer is zero. (4) Limits on capital distributions and discretionary bonus payments. (i) A [BANK] shall not make capital distributions or discretionary bonus payments or create an obligation to make such distributions or payments during the current calendar quarter that, in the aggregate, exceed the maximum payout amount. (ii) A [BANK] with a capital conservation buffer that is greater than 2.5 percent plus 100 percent of its applicable countercyclical buffer, in accordance with paragraph (b) of this section, is not subject to a maximum payout amount under this section. (iii) Negative eligible retained income. Except as provided in paragraph (a)(4)(iv), a [BANK] may not make capital distributions or discretionary bonus payments during the current calendar quarter if the [BANK]’s: (A) Eligible retained income is negative; and (B) Capital conservation buffer was less than 2.5 percent as of the end of the previous calendar quarter. (iv) Prior approval. Notwithstanding the limitations in paragraphs (a)(4)(i) through (iii) of this section the [AGENCY] may permit a [BANK] to make a capital distribution or discretionary bonus payment upon a request of the [BANK], if the [AGENCY] determines that the capital distribution or discretionary bonus payment would not be contrary to the purposes of this section, or the safety and soundness of the [BANK]. In making such a determination, the [AGENCY] will consider the nature and extent of the request and the particular circumstances giving rise to the request. weighted assets if it is an advanced approaches [BANK]. E:\FR\FM\30AUP2.SGM 30AUP2 52858 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules TABLE TO § ll.11—CALCULATION OF MAXIMUM PAYOUT AMOUNT Capital conservation buffer (as a percentage of total risk-weighted assets) mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Greater than 2.5 percent plus 100 percent of the [BANK]’s applicable countercyclical capital buffer amount. Less than or equal to 2.5 percent plus 100 percent of the [BANK]’s applicable countercyclical capital buffer amount, and greater than 1.875 percent plus 75 percent of the [BANK]’s applicable countercyclical capital buffer amount. Less than or equal to 1.875 percent plus 75 percent of the [BANK]’s applicable countercyclical capital buffer amount, and greater than 1.25 percent plus 50 percent of the [BANK]’s applicable countercyclical capital buffer amount. Less than or equal to 1.25 percent plus 50 percent of the [BANK]’s applicable countercyclical capital buffer amount, and greater than 0.625 percent plus 25 percent of the [BANK]’s applicable countercyclical capital buffer amount. Less than or equal to 0.625 percent plus 25 percent of the [BANK]’s applicable countercyclical capital buffer amount. (v) Other limitations on capital distributions. Additional limitations on capital distributions may apply to a [BANK] under 12 CFR 225.4; 12 CFR 225.8; and 12 CFR 263.202. (b) Countercyclical capital buffer amount. (1) General. An advanced approaches [BANK] must apply, calculate, and maintain a countercyclical capital buffer amount in accordance with the following paragraphs. (i) Composition. The countercyclical capital buffer amount is composed solely of common equity tier 1 capital. (ii) Amount. An advanced approaches [BANK] has a countercyclical capital buffer amount determined by calculating the weighted average of the countercyclical capital buffer amounts established for the national jurisdictions where the [BANK]’s private sector credit exposures are located, as specified in paragraphs (b)(2) and (3) of this section. (iii) Weighting. The weight assigned to a jurisdiction’s countercyclical capital buffer amount is calculated by dividing the total risk-weighted assets for the [BANK]’s private sector credit exposures located in the jurisdiction by the total risk-weighted assets for all of the [BANK]’s private sector credit exposures. (iv) Location. (A) Except as provided in paragraph (b)(1)(iv)(B) of this section, the location of a private sector credit exposure (other than a securitization exposure) is the national jurisdiction where the borrower is located (that is, where it is incorporated, chartered, or similarly established or, if the borrower is an individual, where the borrower resides). (B) If, in accordance with subpart D or subpart E of this part, the [BANK] has assigned to a private sector credit exposure a risk weight associated with a protection provider on a guarantee or credit derivative, the location of the exposure is the national jurisdiction VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 where the protection provider is located. (C) The location of a securitization exposure is the location of the borrowers of underlying exposures in a single jurisdiction with the largest aggregate unpaid principal balance. (2) Countercyclical capital buffer amount for credit exposures in the United States. (i) Initial countercyclical buffer amount with respect to credit exposures in the United States. The initial countercyclical capital buffer amount in the United States is zero. (ii) Adjustment of the countercyclical buffer amount. The [AGENCY] will adjust the countercyclical capital buffer amount for credit exposures in the United States in accordance with applicable law.3 (iii) Range of countercyclical buffer amount. The [AGENCY] will adjust the countercyclical capital buffer amount for credit exposures in the United States between zero percent and 2.5 percent of total risk-weighted assets. Generally, a zero percent countercyclical capital buffer amount will reflect an assessment that economic and financial conditions are consistent with a period of little or no excessive ease in credit markets associated with no material increase in system-wide credit risk. A 2.5 percent countercyclical capital buffer amount will reflect an assessment that financial markets are experiencing a period of excessive ease in credit markets associated with a material increase in credit system-wide risk. (iv) Adjustment Determination. The [AGENCY] will base its decision to adjust the countercyclical capital buffer amount under this section on a range of macroeconomic, financial, and supervisory information indicating an increase in systemic risk including, but 3 The [AGENCY] expects that any adjustment will be based on a determination made jointly by the Board, OCC, and FDIC. PO 00000 Frm 00068 Fmt 4701 Sfmt 4702 Maximum payout ratio (as a percentage of eligible retained income) No payout ratio limitation applies. 60 percent. 40 percent. 20 percent. 0 percent. not limited to, the ratio of credit to gross domestic product, a variety of asset prices, other factors indicative of relative credit and liquidity expansion or contraction, funding spreads, credit condition surveys, indices based on credit default swap spreads, options implied volatility, and measures of systemic risk. (v) Effective date of adjusted countercyclical capital buffer amount. (A) Increase adjustment. A determination by the [AGENCY] under paragraph (b)(2)(ii) of this section to increase the countercyclical capital buffer amount will be effective 12 months from the date of announcement, unless the [AGENCY] establishes an earlier effective date and includes a statement articulating the reasons for the earlier effective date. (B) Decrease adjustment. A determination by the [AGENCY] to decrease the established countercyclical capital buffer amount under paragraph (b)(2)(ii) of this section will be effective at the later of the day following announcement of the final determination or the earliest date permissible under applicable law or regulation. (vi) Twelve month sunset. The countercyclical capital buffer amount will return to zero percent 12 months after the effective date of the adjusted countercyclical capital buffer amount announced, unless the [AGENCY] announces a decision to maintain the adjusted countercyclical capital buffer amount or adjust it again before the expiration of the 12-month period. (3) Countercyclical capital buffer amount for foreign jurisdictions. The [AGENCY] will adjust the countercyclical capital buffer amount for private sector credit exposures to reflect decisions made by foreign jurisdictions consistent with due process requirements described in paragraph (b)(2) of this section. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Subpart C—Definition of Capital mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § ll.20 Capital components and eligibility criteria for regulatory capital instruments. (a) Regulatory capital components. A [BANK]’s regulatory capital components are: (1) Common equity tier 1 capital; (2) Additional tier 1 capital; and (3) Tier 2 capital. (b) Common equity tier 1 capital. Common equity tier 1 capital is the sum of the common equity tier 1 capital elements as set forth in paragraph (b) of this section, minus regulatory adjustments and deductions as set forth in § ll.22 of this part.1 The common equity tier 1 capital elements are: (1) Any common stock instruments (plus any related surplus) issued by the [BANK], net of treasury stock, that meet all the following criteria: 2 (i) The instrument is paid-in, issued directly by the [BANK], and represents the most subordinated claim in a receivership, insolvency, liquidation, or similar proceeding of the [BANK]. (ii) The holder of the instrument is entitled to a claim on the residual assets of the [BANK] that is proportional with the holder’s share of the [BANK]’s issued capital after all senior claims have been satisfied in a receivership, insolvency, liquidation, or similar proceeding. (iii) The instrument has no maturity date, can only be redeemed via discretionary repurchases with the prior approval of the [AGENCY], and does not contain any term or feature that creates an incentive to redeem. (iv) The [BANK] did not create at issuance of the instrument through any action or communication an expectation that it will buy back, cancel, or redeem the instrument, and the instrument does not include any term or feature that might give rise to such an expectation. (v) Any cash dividend payments on the instrument are paid out of the [BANK]’s net income and retained earnings and are not subject to a limit imposed by the contractual terms governing the instrument. (vi) The [BANK] has full discretion at all times to refrain from paying any dividends and making any other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, 1 Voting common stockholders’ equity, which is the most desirable capital element from a supervisory standpoint, generally should be the dominant element within common equity tier 1 capital. 2 Capital instruments issued by mutual banking organizations may qualify as common equity tier 1 capital provided that the instruments meet all of the criteria in this section. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 or an imposition of any other restrictions on the [BANK]. (vii) Dividend payments and any other capital distributions on the instrument may be paid only after all legal and contractual obligations of the [BANK] have been satisfied, including payments due on more senior claims. (viii) The holders of the instrument bear losses as they occur equally, proportionately, and simultaneously with the holders of all other common stock instruments before any losses are borne by holders of claims on the [BANK] with greater priority in a receivership, insolvency, liquidation, or similar proceeding. (ix) The paid-in amount is classified as equity under GAAP. (x) The [BANK], or an entity that the [BANK] controls, did not purchase or directly or indirectly fund the purchase of the instrument. (xi) The instrument is not secured, not covered by a guarantee of the [BANK] or of an affiliate of the [BANK], and is not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (xii) The instrument has been issued in accordance with applicable laws and regulations. (xiii) The instrument is reported on the [BANK]’s regulatory financial statements separately from other capital instruments. (2) Retained earnings. (3) Accumulated other comprehensive income. (4) Common equity tier 1 minority interest subject to the limitations in § ll.21(a) of this part. (c) Additional tier 1 capital. Additional tier 1 capital is the sum of additional tier 1 capital elements and any related surplus, minus the regulatory adjustments and deductions in § ll.22 of this part. Additional tier 1 capital elements are: (1) Instruments (plus any related surplus) that meet the following criteria: (i) The instrument is issued and paid in. (ii) The instrument is subordinated to depositors, general creditors, and subordinated debt holders of the [BANK] in a receivership, insolvency, liquidation, or similar proceeding. (iii) The instrument is not secured, not covered by a guarantee of the [BANK] or of an affiliate of the [BANK], and not subject to any other arrangement that legally or economically enhances the seniority of the instrument. (iv) The instrument has no maturity date and does not contain a dividend step-up or any other term or feature that creates an incentive to redeem. PO 00000 Frm 00069 Fmt 4701 Sfmt 4702 52859 (v) If callable by its terms, the instrument may be called by the [BANK] only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called earlier than five years upon the occurrence of a regulatory event that precludes the instrument from being included in additional tier 1 capital or a tax event. In addition: (A) The [BANK] must receive prior approval from the [AGENCY] to exercise a call option on the instrument. (B) The [BANK] does not create at issuance of the instrument, through any action or communication, an expectation that the call option will be exercised. (C) Prior to exercising the call option, or immediately thereafter, the [BANK] must either: (1) Replace the instrument to be called with an equal amount of instruments that meet the criteria under paragraph (b) or (c) of this section; 3 or (2) Demonstrate to the satisfaction of the [AGENCY] that following redemption, the [BANK] will continue to hold capital commensurate with its risk. (vi) Redemption or repurchase of the instrument requires prior approval from the [AGENCY]. (vii) The [BANK] has full discretion at all times to cancel dividends or other capital distributions on the instrument without triggering an event of default, a requirement to make a payment-in-kind, or an imposition of other restrictions on the [BANK] except in relation to any capital distributions to holders of common stock. (viii) Any capital distributions on the instrument are paid out of the [BANK]’s net income and retained earnings. (ix) The instrument does not have a credit-sensitive feature, such as a dividend rate that is reset periodically based in whole or in part on the [BANK]’s credit quality, but may have a dividend rate that is adjusted periodically independent of the [BANK]’s credit quality, in relation to general market interest rates or similar adjustments. (x) The paid-in amount is classified as equity under GAAP. (xi) The [BANK], or an entity that the [BANK] controls, did not purchase or directly or indirectly fund the purchase of the instrument. (xii) The instrument does not have any features that would limit or discourage additional issuance of capital by the [BANK], such as 3 Replacement can be concurrent with redemption of existing additional tier 1 capital instruments. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52860 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules provisions that require the [BANK] to compensate holders of the instrument if a new instrument is issued at a lower price during a specified time frame. (xiii) If the instrument is not issued directly by the [BANK] or by a subsidiary of the [BANK] that is an operating entity, the only asset of the issuing entity is its investment in the capital of the [BANK], and proceeds must be immediately available without limitation to the [BANK] or to the [BANK]’s top-tier holding company in a form which meets or exceeds all of the other criteria for additional tier 1 capital instruments.4 (xiv) For an advanced approaches [BANK], the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013 must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the [BANK] enters into a receivership, insolvency, liquidation, or similar proceeding. (2) Tier 1 minority interest, subject to the limitations in § ll.21(b) of this part, that is not included in the [BANK]’s common equity tier 1 capital. (3) Any and all instruments that qualified as tier 1 capital under the [AGENCY]’s general risk-based capital rules under 12 CFR part 3, appendix A, 12 CFR 167 (OCC); 12 CFR part 208, appendix A, 12 CFR part 225, appendix A (Board); and 12 CFR part 325, appendix A, 12 CFR part 390, subpart Z (FDIC) as then in effect, that were issued under the Small Business Jobs Act of 2010 5 or prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008.6 (d) Tier 2 Capital. Tier 2 capital is the sum of tier 2 capital elements and any related surplus, minus regulatory adjustments and deductions in § ll.22 of this part. Tier 2 capital elements are: (1) Instruments (plus related surplus) that meet the following criteria: (i) The instrument is issued and paid in. (ii) The instrument is subordinated to depositors and general creditors of the [BANK]. (iii) The instrument is not secured, not covered by a guarantee of the [BANK] or of an affiliate of the [BANK], and not subject to any other arrangement that legally or economically enhances the seniority of the instrument in relation to more senior claims. 4 De minimis assets related to the operation of the issuing entity can be disregarded for purposes of this criterion. 5 Public Law 111–240; 124 Stat. 2504 (2010). 6 Public Law 110–343, 122 Stat. 3765 (2008). VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (iv) The instrument has a minimum original maturity of at least five years. At the beginning of each of the last five years of the life of the instrument, the amount that is eligible to be included in tier 2 capital is reduced by 20 percent of the original amount of the instrument (net of redemptions) and is excluded from regulatory capital when remaining maturity is less than one year. In addition, the instrument must not have any terms or features that require, or create significant incentives for, the [BANK] to redeem the instrument prior to maturity. (v) The instrument, by its terms, may be called by the [BANK] only after a minimum of five years following issuance, except that the terms of the instrument may allow it to be called sooner upon the occurrence of an event that would preclude the instrument from being included in tier 2 capital, or a tax event. In addition: (A) The [BANK] must receive the prior approval of the [AGENCY] to exercise a call option on the instrument. (B) The [BANK] does not create at issuance, through action or communication, an expectation the call option will be exercised. (C) Prior to exercising the call option, or immediately thereafter, the [BANK] must either: (1) Replace any amount called with an equivalent amount of an instrument that meets the criteria for regulatory capital under this section,7 or (2) Demonstrate to the satisfaction of the [AGENCY] that following redemption, the [BANK] would continue to hold an amount of capital that is commensurate with its risk. (vi) The holder of the instrument must have no contractual right to accelerate payment of principal or interest on the instrument, except in the event of a receivership, insolvency, liquidation, or similar proceeding of the [BANK]. (vii) The instrument has no creditsensitive feature, such as a dividend or interest rate that is reset periodically based in whole or in part on the [BANK]’s credit standing, but may have a dividend rate that is adjusted periodically independent of the [BANK]’s credit standing, in relation to general market interest rates or similar adjustments. (viii) The [BANK], or an entity that the [BANK] controls, has not purchased and has not directly or indirectly funded the purchase of the instrument. (ix) If the instrument is not issued directly by the [BANK] or by a subsidiary of the [BANK] that is an operating entity, the only asset of the issuing entity is its investment in the capital of the [BANK], and proceeds must be immediately available without limitation to the [BANK] or the [BANK]’s top-tier holding company in a form that meets or exceeds all the other criteria for tier 2 capital instruments under this section.8 (x) Redemption of the instrument prior to maturity or repurchase requires the prior approval of the [AGENCY]. (xi) For an advanced approaches [BANK], the governing agreement, offering circular, or prospectus of an instrument issued after January 1, 2013 must disclose that the holders of the instrument may be fully subordinated to interests held by the U.S. government in the event that the [BANK] enters into a receivership, insolvency, liquidation, or similar proceeding. (2) Total capital minority interest, subject to the limitations set forth in § ll.21(c) of this part, that is not included in the [BANK]’s tier 1 capital. (3) Allowance for loan and lease losses (ALLL) up to 1.25 percent of the [BANK]’s standardized total riskweighted assets not including any amount of the ALLL (and excluding in the case of a market risk [BANK], its standardized market risk-weighted assets). (4) Any instrument that qualified as tier 2 capital under the [AGENCY]’s general risk-based capital rules under 12 CFR part 3, appendix A, 12 CFR 167 (OCC); 12 CFR part 208, appendix A, 12 CFR part 225, appendix A (Board); 12 CFR part 325, appendix A, 12 CFR part 390 (FDIC) as then in effect, that were issued under the Small Business Jobs Act of 2010 (Pub. L. 111–240; 124 Stat. 2504 (2010)) or prior to October 4, 2010, under the Emergency Economic Stabilization Act of 2008 (Pub. L. 110– 343, 122 Stat. 3765 (2008)). (e) [AGENCY] approval of a capital element. (1) Notwithstanding the criteria for regulatory capital instruments set forth in this section, the [AGENCY] may find that a capital element may be included in a [BANK]’s common equity tier 1 capital, additional tier 1 capital, or tier 2 capital on a permanent or temporary basis. (2) A [BANK] must receive [AGENCY] prior approval to include a capital element (as listed in this section) in its common equity tier 1 capital, additional tier 1 capital, or tier 2 capital unless the element: (i) Was included in a [BANK]’s tier 1 capital or tier 2 capital as of May 19, 7 Replacement of tier 2 capital instruments can be concurrent with redemption of existing tier 2 capital instruments. 8 De minimis assets related to the operation of the issuing entity can be disregarded for purposes of this criterion. PO 00000 Frm 00070 Fmt 4701 Sfmt 4702 E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules 2010 in accordance with the [AGENCY]’s risk-based capital rules that were effective as of that date and the underlying instrument continues to be includable under the criteria set forth in this section; or (ii) Is equivalent in terms of capital quality and ability to absorb credit losses with respect to all material terms to a regulatory capital element described in a decision made publicly available under paragraph (e)(3) of this section by the [AGENCY]. (3) When considering whether a [BANK] may include a regulatory capital element in its common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, the [AGENCY] will consult with the other federal banking agencies. (4) After determining that a regulatory capital element may be included in a [BANK]’s common equity tier 1 capital, additional tier 1 capital, or tier 2 capital, the [AGENCY] will make its decision publicly available, including a brief description of the material terms of the regulatory capital element and the rationale for the determination. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § ll.21 Minority interest. (a) Common equity tier 1 minority interest 9 includable in the common equity tier 1 capital of the [BANK]. For each consolidated subsidiary of a [BANK], the amount of common equity tier 1 minority interest the [BANK] may include in common equity tier 1 capital is equal to: (1) The common equity tier 1 minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s common equity tier 1 capital that is not owned by the [BANK], multiplied by the difference between the common equity tier 1 capital of the subsidiary and the lower of: (i) The amount of common equity tier 1 capital the subsidiary must hold to not be subject to restrictions on capital distributions and discretionary bonus payments under § ll.11 of subpart B of this part or equivalent regulations established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the [BANK] that relate to the subsidiary multiplied by (B) The common equity tier 1 capital ratio the subsidiary must maintain to not be subject to restrictions on capital 9 For purposes of the minority interest calculations, if the consolidated subsidiary issuing the capital is not subject to the same minimum capital requirements or capital conservation buffer framework of the [BANK], the [BANK] must assume that the minimum capital requirements and capital conservation buffer framework of the [BANK] apply to the subsidiary. VerDate Mar<15>2010 19:45 Aug 29, 2012 Jkt 226001 distributions and discretionary bonus payments under § ll.11 of subpart B of this part or equivalent regulations established by the subsidiary’s home country supervisor. (b) Tier 1 minority interest includable in the tier 1 capital of the [BANK]. For each consolidated subsidiary of the [BANK], the amount of tier 1 minority interest the [BANK] may include in tier 1 capital is equal to: (1) The tier 1 minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s tier 1 capital that is not owned by the [BANK] multiplied by the difference between the tier 1 capital of the subsidiary and the lower of: (i) The amount of tier 1 capital the subsidiary must hold to not be subject to restrictions on capital distributions and discretionary bonus payments under § ll.11 of subpart B of this part or equivalent standards established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the [BANK] that relate to the subsidiary multiplied by (B) The tier 1 capital ratio the subsidiary must maintain to avoid restrictions on capital distributions and discretionary bonus under § ll.11 of subpart B of this part or equivalent standards established by the subsidiary’s home country supervisor. (c) Total capital minority interest includable in the total capital of the [BANK]. For each consolidated subsidiary of the [BANK], the amount of total capital minority interest the [BANK] may include in total capital is equal to: (1) The total capital minority interest of the subsidiary; minus (2) The percentage of the subsidiary’s total capital that is not owned by the [BANK] multiplied by the difference between the total capital of the subsidiary and the lower of: (i) The amount of total capital the subsidiary must hold to not be subject to restrictions on capital distributions and discretionary bonus payments under § ll.11 of subpart B of this part or equivalent standards established by the subsidiary’s home country supervisor, or (ii)(A) The standardized total riskweighted assets of the [BANK] that relate to the subsidiary multiplied by (B) The total capital ratio the subsidiary must maintain to avoid restrictions on capital distributions and discretionary bonus payments under § ll.11 of subpart B of this part or equivalent standards established by the subsidiary’s home country supervisor. PO 00000 Frm 00071 Fmt 4701 Sfmt 4702 52861 § ll.22 Regulatory capital adjustments and deductions. (a) Regulatory capital deductions from common equity tier 1 capital. A [BANK] must deduct the following items from the sum of its common equity tier 1 capital elements: (1) Goodwill, net of associated deferred tax liabilities (DTLs), in accordance with paragraph (e) of this section, and goodwill embedded in the valuation of a significant investment in the capital of an unconsolidated financial institution in the form of common stock, in accordance with paragraph (d) of this section. (2) Intangible assets, other than MSAs, net of associated DTLs, in accordance with paragraph (e) of this section. (3) Deferred tax assets (DTAs) that arise from operating loss and tax credit carryforwards net of any related valuation allowances and net of DTLs, in accordance with paragraph (e) of this section. (4) Any gain-on-sale associated with a securitization exposure. (5) For a [BANK] that is not an insured depository institution, any defined benefit pension fund asset, net of any associated DTL, in accordance with paragraph (e) of this section. With the prior approval of the [AGENCY], the [BANK] may reduce the amount to be deducted by the amount of assets of the defined benefit pension fund to which it has unrestricted and unfettered access, provided that the [BANK] includes such assets in its risk-weighted assets as if the [BANK] held them directly.10 (6) For a [BANK] subject to subpart E of this [PART], the amount of expected credit loss that exceeds its eligible credit reserves. (7) Financial subsidiaries: (i) A [BANK] must deduct the aggregate amount of its outstanding equity investment, including retained earnings, in its financial subsidiaries (as defined in 12 CFR 5.39 (OCC); 12 CFR 208.77 (Board); and 12 CFR 362.17 (FDIC)) and may not consolidate the assets and liabilities of a financial subsidiary with those of the national bank. (ii) No other deduction is required under paragraph (c) of this section for investments in the capital instruments of financial subsidiaries. (b) Regulatory adjustments to common equity tier 1 capital. A [BANK] must make the following adjustments to 10 For this purpose, unrestricted and unfettered access means that the excess assets of the defined benefit pension fund would be available to protect depositors or creditors of the [BANK] in the event of receivership, insolvency, liquidation, or similar proceeding. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52862 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules the sum of common equity tier 1 capital elements: (1) Deduct any unrealized gain and add any unrealized loss on cash flow hedges included in accumulated other comprehensive income (AOCI), net of applicable tax effects, that relate to the hedging of items that are not recognized at fair value on the balance sheet. (2) Deduct any unrealized gain and add any unrealized loss related to changes in the fair value of liabilities that are due to changes in the [BANK]’s own credit risk. Advanced approaches [BANK]s must deduct the credit spread premium over the risk free rate for derivatives that are liabilities. (c) Deductions from regulatory capital related to investments in capital instruments. (1) Investments in the [BANK]’s own capital instruments. (i) A [BANK] must deduct investments in (including any contractual obligation to purchase) its own common stock instruments, whether held directly or indirectly, from its common equity tier 1 capital elements to the extent such instruments are not excluded from regulatory capital under § ll.20(b)(1) of this part. (ii) A [BANK] must deduct investments in (including any contractual obligation to purchase) its own additional tier 1 capital instruments, whether held directly or indirectly, from its additional tier 1 capital elements. (iii) A [BANK] must deduct investments in (including any contractual obligation to purchase) its own tier 2 capital instruments, whether held directly or indirectly, from its tier 2 capital elements. (iv) For any deduction required under this section, gross long positions may be deducted net of short positions in the same underlying instrument only if the short positions involve no counterparty risk. (v) For any deduction required under this section, a [BANK] must look through any holdings of index securities to deduct investments in its own capital instruments. In addition: (A) Gross long positions in investments in a [BANK]’s own regulatory capital instruments resulting from holdings of index securities may be netted against short positions in the same index; (B) Short positions in index securities that are hedging long cash or synthetic positions can be decomposed to recognize the hedge; and (C) The portion of the index that is composed of the same underlying exposure that is being hedged may be used to offset the long position if both the exposure being hedged and the short VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 position in the index are covered positions under subpart F of this part, and the hedge is deemed effective by the banking organization’s internal control processes. (2) Corresponding deduction approach. For purposes of this subpart, the corresponding deduction approach is the methodology used for the deductions from regulatory capital related to reciprocal cross holdings, non-significant investments in the capital of unconsolidated financial institutions, and non-common stock significant investments in the capital of unconsolidated financial institutions. Under the corresponding deduction approach, a [BANK] must make any such deductions from the component of capital for which the underlying instrument would qualify if it were issued by the [BANK] itself. In addition: (i) If the [BANK] does not have a sufficient amount of a specific component of capital to effect the required deduction, the shortfall must be deducted from the next higher (that is, more subordinated) component of regulatory capital. (ii) If the investment is in the form of an instrument issued by a non-regulated financial institution, the [BANK] must treat the instrument as: (A) A common equity tier 1 capital instrument if it is common stock or represents the most subordinated claim in liquidation of the financial institution; and (B) An additional tier 1 capital instrument if it is subordinated to all creditors of the financial institution and is only senior in liquidation to common shareholders. (iii) If the investment is in the form of an instrument issued by a regulated financial institution and the instrument does not meet the criteria for common equity tier 1, additional tier 1 or tier 2 capital instruments under § ll.20 of this part, the [BANK] must treat the instrument as: (A) A common equity tier 1 capital instrument if it is common stock included in GAAP equity or represents the most subordinated claim in liquidation of the financial institution; (B) An additional tier 1 capital instrument if it is included in GAAP equity, subordinated to all creditors of the financial institution, and senior in a receivership, insolvency, liquidation, or similar proceeding only to common shareholders; and (C) A tier 2 capital instrument if it is not included in GAAP equity but considered regulatory capital by the primary regulator of the financial institution. PO 00000 Frm 00072 Fmt 4701 Sfmt 4702 (3) Reciprocal crossholdings in the capital of financial institutions. A [BANK] must deduct investments in the capital of other financial institutions it holds reciprocally, where such reciprocal crossholdings result from a formal or informal arrangement to swap, exchange, or otherwise intend to hold each other’s capital instruments, by applying the corresponding deduction approach. (4) Non-significant investments in the capital of unconsolidated financial institutions. (i) A [BANK] must deduct its non-significant investments in the capital of unconsolidated financial institutions that, in the aggregate, exceed 10 percent of the sum of the [BANK]’s common equity tier 1 capital elements minus all deductions from and adjustments to common equity tier 1 capital elements required under paragraphs (a) through (c)(3) of this section (the 10 percent threshold for non-significant investments) by applying the corresponding deduction approach.11 (ii) The amount to be deducted under this section from a specific capital component is equal to: (A) The amount of a [BANK]’s nonsignificant investments exceeding the 10 percent threshold for non-significant investments multiplied by (B) The ratio of the non-significant investments in unconsolidated financial institutions in the form of such capital component to the amount of the [BANK]’s total non-significant investments in unconsolidated financial institutions. (iii) Any non-significant investments in the capital of unconsolidated financial institutions that do not exceed the 10 percent threshold for nonsignificant investments under this section must be assigned the appropriate risk weight under subpart D, E, or F of this part, as applicable. (5) Significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock. The [BANK] must deduct its significant investments in the capital of unconsolidated financial institutions that are not in the form of common stock by applying the corresponding deduction approach.12 11 With prior written approval of the [AGENCY], for the period of time stipulated by the [AGENCY], a [BANK] is not required to deduct exposures to the capital instruments of unconsolidated financial institutions pursuant to this section if the investment is made in connection with the [BANK] providing financial support to a financial institution in distress. 12 With prior written approval of the [AGENCY], for the period of time stipulated by the [AGENCY], a [BANK] is not required to deduct exposures to the capital instruments of unconsolidated financial E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (d) Items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds. (1) A [BANK] must deduct from common equity tier 1 capital elements the amount of each of the following items that, individually, exceeds 10 percent of the sum of the [BANK]’s common equity tier 1 capital elements, less adjustments to and deductions from common equity tier 1 capital required under paragraphs (a) through (c) of this section (the 10 percent common equity tier 1 capital deduction threshold): 13 (i) DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks, net of any related valuation allowances and net of DTLs, in accordance with paragraph (e) of this section.14 (ii) MSAs net of associated DTLs, in accordance with paragraph (e) of this section. (iii) Significant investments in the capital of unconsolidated financial institutions in the form of common stock net of associated DTLs, in accordance with paragraph (e) of this section.15 (2) A [BANK] must deduct from common equity tier 1 capital elements the amount of the items listed in paragraph (d)(1) of this section that are not deducted as a result of the application of the 10 percent common equity tier 1 capital deduction threshold, and that, in aggregate, exceeds 17.65 percent of the sum of the [BANK]’s common equity tier 1 capital elements, minus adjustments to and deductions from common equity tier 1 capital required under paragraphs (a) through (c) of this section, minus the items listed in paragraph (d)(1) of this section (the 15 percent common equity tier 1 capital deduction threshold).16 (3) If the total amount of MSAs deducted under paragraphs (d)(1) and (2) of this section is less than 10 percent of the fair value of MSAs, a [BANK] must deduct an additional amount of MSAs equal to the difference between 10 percent of the fair value of MSAs and the amount of MSAs deducted under paragraphs (d)(1) and (2). (4) The amount of the items in paragrapn (d)(1) of this section that is not deducted from common equity tier 1 capital pursuant to this section must be included in the risk-weighted assets of the [BANK] and assigned a 250 percent risk weight. (e) Netting of DTLs against assets subject to deduction. (1) Except as described in paragraph (e)(3) of this section, netting of DTLs against assets that are subject to deduction under § ll.22 is permitted if the following conditions are met: (i) The DTL is associated with the asset. (ii) The DTL would be extinguished if the associated asset becomes impaired or is derecognized under GAAP. (2) A DTL can only be netted against a single asset. (3) The amount of DTAs that arise from operating loss and tax credit carryforwards, net of any related valuation allowances, and of DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks, net of any related valuation allowances, may be netted against DTLs (that have not been netted against assets subject to deduction pursuant to paragraph (e)(1) of this section subject to the following conditions: 52863 (i) Only the DTAs and DTLs that relate to taxes levied by the same taxation authority and that are eligible for offsetting by that authority may be offset for purposes of this deduction. (ii) The amount of DTLs that the [BANK] nets against DTAs that arise from operating loss and tax credit carryforwards, net of any related valuation allowances, and against DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks, net of any related valuation allowances, must be allocated in proportion to the amount of DTAs that arise from operating loss and tax credit carryforwards (net of any related valuation allowances, but before any offsetting of DTLs) and of DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks (net of any related valuation allowances, but before any offsetting of DTLs), respectively. (f) Treatment of assets that are deducted. A [BANK] need not include in risk-weighted assets any asset that is deducted from regulatory capital under this section. (g) Items subject to a 1250 percent risk weight. A [BANK] must apply a 1250 percent risk weight to the portion of a CEIO that does not constitute an aftertax-gain-on-sale. Subpart G—Transition Provisions § ll.300 Transitions. (a) Common equity tier 1 and tier 1 capital minimum ratios. From January 1, 2013 through December 31, 2015, a [BANK] must calculate its capital ratios in accordance with this subpart and maintain at least the transition minimum capital ratios set forth in Table 1. TABLE 1 TO § ll.300 Transition Minimum Common Equity Tier 1 and Tier 1 Capital Ratios Common equity tier 1 capital ratio Transition period mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar year 2013 ......................................................................................................................................... Calendar year 2014 ......................................................................................................................................... Calendar year 2015 ......................................................................................................................................... institutions pursuant to this section if the investment is made in connection with the [BANK] providing financial support to a financial institution in distress. 13 For purposes of calculating the 10 and 15 percent common equity tier 1 capital deduction thresholds, any goodwill embedded in the valuation of a significant investments in the capital of unconsolidated financial institutions in the form of common stock that is deducted under § ll.22(a)(1) can be excluded. 14 A [BANK] is not required to deduct from the sum of its common equity tier 1 capital elements VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 net DTAs arising from timing differences that the [BANK] could realize through net operating loss carrybacks. The [BANK] must risk weight these assets at 100 percent. Likewise, for a [BANK] that is a member of a consolidated group for tax purposes, the amount of DTAs that could be realized through net operating loss carrybacks may not exceed the amount that the [BANK] could reasonably expect to have refunded by its parent holding company. 15 With the prior written approval of the [AGENCY], for the period of time stipulated by the [AGENCY], a [BANK] is not required to deduct PO 00000 Frm 00073 Fmt 4701 Sfmt 4702 3.5 4.0 4.5 Tier 1 capital ratio 4.5 5.5 6.0 exposures to the capital instruments of unconsolidated financial institutions pursuant to this section if the investment is made in connection with the [BANK] providing financial support to a financial institution in distress. 16 For purposes of calculating the 15 percent common equity tier 1 capital deduction threshold, any goodwill that has already been deducted under § ll.22(a)(1) can be excluded from the amount of the significant investments in the capital of unconsolidated financial institutions in the form of common stock. E:\FR\FM\30AUP2.SGM 30AUP2 52864 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (b) Capital conservation and countercyclical capital buffer. From January 1, 2013 through December 31, 2018, a [BANK] is subject to limitations on capital distributions and discretionary bonus payments with respect to its capital conservation buffer and any applicable countercyclical capital buffer amount, as set forth in this section. (1) From January 1, 2013 through December 31, 2015, a [BANK] is not subject to limits on capital distributions bonus payments under § ll.11 of subpart B. (ii) A [BANK] that maintains a capital conservation buffer that is less than 0.625 percent during calendar year 2016, less than 1.25 percent during calendar year 2017, and less than 1.875 percent during calendar year 2018 cannot make capital distributions and discretionary bonus payments above the maximum payout amount (as defined under § ll.11 of subpart B of this part) as described in Table 2. and discretionary bonus payments under § ll.11 of subpart B of this part notwithstanding the amount of its capital conservation buffer. (2) From January 1, 2016 through December 31, 2018: (i) A [BANK] that maintains a capital conservation buffer above 0.625 percent during calendar year 2016, above 1.25 percent during calendar year 2017, and above 1.875 percent during calendar year 2018 is not subject to limits on capital distributions and discretionary TABLE 2 TO § ll.300 Transition period Capital conservation buffer (assuming a countercyclical capital buffer amount of zero) Maximum payout ratio (as a percentage of eligible retained income) Calendar year 2016 ................................. Greater than 0.625 percent ................................... Calendar year 2017 ................................. Less than or equal to 0.625 percent, and greater than 0.469 percent. Less than or equal to 0.469 percent, and greater than 0.313 percent. Less than or equal to 0.313 percent, and greater than 0.156 percent. Less than or equal to 0.156 percent ..................... Greater than 1.25 percent ..................................... No payout ratio limitation applies under this section. 60 percent. Calendar year 2018 ................................. Less than or equal to 1.25 percent, and greater than 0.938 percent. Less than or equal to 0.938 percent, and greater than 0.625 percent. Less than or equal to 0.625 percent, and greater than 0.313 percent. Less than or equal to 0.313 percent ..................... Greater than 1.875 percent ................................... Less than or equal to 1.875 percent, and greater than 1.406 percent. Less than or equal to 1.406 percent, and greater than 0.938 percent. Less than or equal to 0.938 percent, and greater than 0.469 percent. Less than or equal to 0.469 percent ..................... mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (c) Regulatory capital adjustments and deductions. From January 1, 2013 through December 31, 2017, a [BANK] must make the capital adjustments and deductions in § ll.22 of subpart C of this part in accordance with the transition requirements in paragraph (c) of this part. Beginning on January 1, 2018, a [BANK] must make all regulatory capital adjustments and deductions in accordance with § lll.22 of subpart C of this part. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 40 percent. 20 percent. 0 percent. No payout ratio limitation applies under this section. 60 percent. 40 percent. 20 percent. 0 percent. No payout ratio limitation applies under this section. 60 percent. 40 percent. 20 percent. 0 percent. (1) Transition deductions from common equity tier 1 capital. From January 1, 2013 through December 31, 2017, a [BANK] must allocate the deductions required under § ll.22(a) of subpart C of this part from common equity tier 1 or tier 1 capital elements as described below. (i) A [BANK] must deduct goodwill (§ ll.22(a)(1) of subpart C of this part), DTAs that arise from operating loss and tax credit carryforwards (§ ll.22(a)(3) PO 00000 Frm 00074 Fmt 4701 Sfmt 4702 of subpart C), gain-on-sale associated with a securitization exposure (§ ll.22(a)(4) of subpart C), defined benefit pension fund assets (§ ll.22(a)(5) of subpart C), and expected credit loss that exceeds eligible credit reserves (for [BANK]s subject to subpart E of this [PART]) (§ ll.22(a)(6) of subpart C), from common equity tier 1 and additional tier 1 capital in accordance with the percentages set forth in Table 3. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules 52865 TABLE 3 TO § ll.300 Transition deductions under § ll.22(a)(1) of subpart C of this part Percentage of the deductions from common equity tier 1 capital Transition period Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year Transition deductions under § ll.22(a)(3)–(6) of subpart C of this part Percentage of the deductions from common equity tier 1 capital 2013 ............................................................................................. 2014 ............................................................................................. 2015 ............................................................................................. 2016 ............................................................................................. 2017 ............................................................................................. 2018, and thereafter .................................................................... 100 100 100 100 100 100 TABLE 4 TO § ll.300 (ii) A [BANK] must deduct from common equity tier 1 capital any intangible assets other than goodwill and MSAs in accordance with the percentages set forth in Table 4. (iii) A [BANK] must apply a 100 percent risk-weight to the aggregate amount of intangible assets other than goodwill and MSAs that are not required to be deducted from common equity tier 1 capital under this section. Transition deductions under § ll.22(a)(2) of subpart C—Percentage of the deductions from common equity tier 1 capital Transition period Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 and thereafter ....................... 0 20 40 60 80 100 (2) Transition adjustments to common equity tier 1 capital. From January 1, 0 20 40 60 80 100 Percentage of the deductions from tier 1 capital 100 80 60 40 20 0 2013 through December 31, 2017, a [BANK] must allocate the regulatory adjustments related to changes in the fair value of liabilities due to changes in the [BANK]’s own credit risk (§ ll 22(b)(2) of subpart C of this part) between common equity tier 1 capital and tier 1 capital in accordance with the percentages described in Table 5. (i) If the aggregate amount of the adjustment is positive, the [BANK] must allocate the deduction between common equity tier 1 and tier 1 capital in accordance with Table 5. (ii) If the aggregate amount of the adjustment is negative, the [BANK] must add back the adjustment to common equity tier 1 capital or to tier 1 capital, in accordance with Table 5. TABLE 5 TO § ll.300 Transition period Transition adjustments under § ll.22(b)(2) of subpart C of this part Percentage of the adjustment applied to common equity tier 1 capital mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar Calendar Calendar Calendar Calendar Calendar year year year year year year 2013 ......................................................................................................................................... 2014 ......................................................................................................................................... 2015 ......................................................................................................................................... 2016 ......................................................................................................................................... 2017 ......................................................................................................................................... 2018, and thereafter ................................................................................................................ (3) Transition adjustments to AOCI. From January 1, 2013 through December 31, 2017, a [BANK] must adjust common equity tier 1 capital with respect to the aggregate amount of: (i) Unrealized gains on AFS equity securities, plus (ii) Net unrealized gains or losses on AFS debt securities, plus (iii) Accumulated net unrealized gains and losses on defined benefit pension obligations, plus VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (iv) Accumulated net unrealized gains or losses on cash flow hedges related to items that are reported on the balance sheet at fair value included in AOCI (the transition AOCI adjustment amount) as reported on the [BANK’s] [REGULATORY REPORT] as follows: (A) If the transition AOCI adjustment amount is positive, the appropriate amount must be deducted from common equity tier 1 capital in accordance with Table 6. PO 00000 Frm 00075 Fmt 4701 Sfmt 4702 0 20 40 60 80 100 Percentage of the adjustment applied to tier 1 capital 100 80 60 40 20 0 (B) If the transition AOCI adjustment amount is negative, the appropriate amount must be added back to common equity tier 1 capital in accordance with Table 6. E:\FR\FM\30AUP2.SGM 30AUP2 52866 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules TABLE 6 TO § ll.300 Transition period deducted from common equity tier 1 capital. Percentage of the transition AOCI adjustment amount to be applied to common equity tier 1 capital Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 and thereafter ....................... 0 TABLE 7 TO § ll.300 Percentage of unrealized gains on AFS equity securities that may be included in tier 2 capital mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 and thereafter ....................... 45 36 27 18 9 0 (4) Additional deductions from regulatory capital. (i) From January 1, 2013 through December 31, 2017, a [BANK] must use Table 8 to determine the amount of investments in capital instruments and the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds (§ ll.22(d) of subpart C of this part) (that is, MSAs, DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock) that must be deducted from common equity tier 1. (ii) From January 1, 2013 through December 31, 2017, a [BANK] must apply a 100 percent risk-weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not deducted under this section. As set forth in § ll.22(d)(4) of subpart C of this part, beginning on January 1, 2018, a [BANK] must apply a 250 percent risk-weight to the aggregate amount of the items subject to the 10 and 15 percent common equity tier 1 capital deduction thresholds that are not VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Transition deductions under § ll.22(c) and (d) of subpart C of this part—Percentage of the deductions from common equity tier 1 capital Transition period 100 80 60 40 20 (iii) A [BANK] may include a certain amount of unrealized gains on AFS equity securities in tier 2 capital during the transition period in accordance with Table 7. Transition period TABLE 8 TO § ll. 300 Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 and thereafter ....................... 0 20 40 60 80 100 (iii) For purposes of calculating the transition deductions in this section, from January 1, 2013 through December 31, 2017, a [BANK]’s 15 percent common equity tier 1 capital deduction threshold for MSAs, DTAs arising from temporary differences that the [BANK] could not realize through net operating loss carrybacks, and significant investments in the capital of unconsolidated financial institutions in the form of common stock is equal to 15 percent of the sum of the [BANK]’s common equity tier 1 elements, after deductions required under § ll.22(a) through (c) of subpart C of this part (transition 15 percent common equity tier 1 capital deduction threshold). (iv) If the amount of MSAs the [BANK] deducts after the application of the appropriate thresholds is less than 10 percent of the fair value of the [BANK]’s MSAs, the [BANK] must deduct an additional amount of MSAs so that the total amount of MSAs deducted is at least 10 percent of the fair value of the [BANK]’s MSAs. (v) Beginning on January 1, 2018, a [BANK] must calculate the 15 percent common equity tier 1 capital deduction threshold in accordance with § ll.22(d) of subpart C of this part. (d) Transition arrangements for capital instruments. (1) A depository institution holding company with total consolidated assets greater than or equal to $15 billion as of December 31, 2009 (depository institution holding company of $15 billion or more) may include in capital the percentage indicated in Table 9 of the aggregate outstanding principal amount of debt or equity instruments issued before May 19, 2010, that do not meet the criteria in § ll.20 of subpart C of this part for additional tier 1 or tier 2 capital instruments (nonqualifying capital instruments), but that PO 00000 Frm 00076 Fmt 4701 Sfmt 4702 were included in tier 1 or tier 2 capital, respectively, as of May 19, 2010. (i) The [BANK] must apply Table 9 separately to additional tier 1 and tier 2 non-qualifying capital instruments. (ii) The amount of non-qualifying capital instruments that may not be included in additional tier 1 capital under this section may be included in tier 2 capital without limitation, provided the instrument meets the criteria for tier 2 capital under § ll.20(d) of subpart C of this part. (iii) A depository institution holding company of $15 billion or more that acquires either a depository institution holding company with total consolidated assets of less than $15 billion as of December 31, 2009 (depository institution holding company under $15 billion) or a depository institution holding company that was a mutual holding company as of May 19, 2010, may include in regulatory capital non-qualifying capital instruments issued prior to May 19, 2010, by the acquired organization only to the extent provided in Table 9. (iv) If a depository institution holding company under $15 billion acquires a depository institution holding company under $15 billion or a 2010 MHC and the resulting organization has total consolidated assets of $15 billion or more as reported on the resulting organization’s FR Y–9C for the period in which the transaction occurred, the resulting organization may include in regulatory capital non-qualifying capital instruments issued prior to May 19, 2010 (2010 MHC) to the extent provided in Table 9. TABLE 9 TO § ll. 300 Transition period (Calendar year) Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 and thereafter ....................... Percentage of non-qualifying capital instruments included in additional tier 1 or tier 2 capital for depository institution holding companies of $15 billion or more 75 50 25 0 (2) Depository institution holding companies under $15 billion, depository institutions, and 2010 MHCs that are not subject to paragraph (d)(1)(iii) of this section may include in regulatory capital non-qualifying capital instruments issued prior to May 19, 2010 subject to the transition E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules arrangements described in paragraph (d)(2). (i) Non-qualifying capital instruments issued before September 12, 2010, that were outstanding as of January 1, 2013 may be included in a [BANK]’s capital up to the percentage of the outstanding principal amount of such non-qualifying capital instruments as of January 1, 2013 in accordance with Table 10. (ii) Table 10 applies separately to additional tier 1 and tier 2 nonqualifying capital instruments. (iii) The amount of non-qualifying capital instruments that cannot be included in additional tier 1 capital under this section may be included in the tier 2 capital, provided the instruments meet the criteria for tier 2 capital instruments under § ll.20(d) of subpart C of this part. TABLE 10 TO § ll. 300 Transition period (Calendar year) Percentage of non-qualifying capital instruments included in additional tier 1 or tier 2 capital for depository institution holding companies under $15 billion, depository institutions, and 2010 MHCs mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 .......... Calendar year 2019 .......... Calendar year 2020 .......... Calendar year 2021 .......... Calendar year 2022 and thereafter ....................... 90 80 70 60 50 40 30 20 10 18:36 Aug 29, 2012 Percentage of the amount of surplus or nonqualifying minority interest that can be included in regulatory capital during the transition period Transition period Calendar year 2013 .......... Calendar year 2014 .......... Calendar year 2015 .......... Calendar year 2016 .......... Calendar year 2017 .......... Calendar year 2018 and thereafter ....................... 100 80 60 40 20 0 12 CFR Part 325 Administrative practice and procedure, Banks, banking, Capital Adequacy, Reporting and recordkeeping requirements, Savings associations, State non-member banks. 12 CFR Part 362 Administrative practice and procedure, Authority delegations (Government agencies), Bank deposit insurance, Banks, banking, Investments, Reporting and recordkeeping requirements. The adoption of the final common rules by the agencies, as modified by the agency-specific text, is set forth below: DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency End of Common Rule 12 CFR Chapter I List of Subjects Authority and Issuance 12 CFR Part 3 Administrative practice and procedure, Capital, National banks, Reporting and recordkeeping requirements, Risk. For the reasons set forth in the common preamble and under the authority of 12 U.S.C. 93a and 5412(b)(2)(B), the Office of the Comptroller of the Currency proposes to amend part 3 of chapter I of title 12, Code of Federal Regulations as follows: 12 CFR Part 5 Administrative practice and procedure, National banks, Reporting and recordkeeping requirements, Securities. 12 CFR Part 165 Administrative practice and procedure, Savings associations. 0 Jkt 226001 TABLE 11 TO § ll. 300 12 CFR Part 6 National banks. (3) Transitional arrangements for minority interest. (i) Surplus minority interest. From January 1, 2013 through December 31, 2018, a [BANK] may include in common equity tier 1 capital, tier 1 capital, or total capital the portion of the common equity tier 1, tier 1 and total capital minority interest outstanding as of January 1, 2013 that exceeds any common equity tier 1, tier 1 or total capital minority interest includable under section 21 (surplus minority interest), respectively, in accordance with Table 11. (ii) Non-qualifying minority interest. From January 1, 2013 through December 31, 2018, a [BANK] may include in tier 1 capital or total capital the portion of the instruments issued by a consolidated subsidiary that qualified as tier 1 capital or total capital of the [BANK] as of December 31, 2012 but VerDate Mar<15>2010 that do not qualify as tier 1 capital or total capital minority interest as of January 1, 2013 (non-qualifying minority interest) in accordance with Table 11. 52867 12 CFR Part 167 Capital, Reporting and recordkeeping requirements, Risk, Savings associations. 12 CFR Part 208 Confidential business information, Crime, Currency, Federal Reserve System, Mortgages, reporting and recordkeeping requirements, Securities. 12 CFR Part 217 Administrative practice and procedure, Banks, banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities. 12 CFR Part 225 Administrative practice and procedure, Banks, banking, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities. PO 00000 Frm 00077 Fmt 4701 Sfmt 4702 PART 3—CAPITAL ADEQUACY STANDARDS 1. The authority citation for part 3 is revised to read as follows: Authority: 12 U.S.C. 93a, 161, 1462, 1462a, 1463, 1464, 1818, 1828(n), 1828 note, 1831n note, 1835, 3907, 3909, and 5412(b)(2)(B). 2a. Revise the heading of part 3 to read as set forth above. Subpart A [Removed] 2b. Remove subpart A, consisting of §§ 3.1 through 3.4. Subpart B [Removed] 2c. Remove subpart B, consisting of §§ 3.5 through 3.8. Subparts C through E [Redesignated as Subparts H through J] 3. Redesignate subparts C through E as subparts H through J. 4. Add subparts A through C and G as set forth at the end of the common preamble. § 3.100 [Redesignated as § 3.600] 5a. Redesignate § 3.100 in newly redesignated subpart J as § 3.600. E:\FR\FM\30AUP2.SGM 30AUP2 52868 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Subpart K—Definition of Capital for Other Statutory Purposes 5b. Add subpart K, consisting of newly redesignated § 3.600, with the heading set forth above. Appendices A, B, and C to Part 3 [Removed] 6. Remove appendices A through C. Subparts A through C and G [Amended] 7. Subparts A through C and G, as set forth at the end of the common preamble, are amended as set follows: i. Remove ‘‘[AGENCY]’’ and add ‘‘OCC’’ in its place, wherever it appears; ii. Remove ‘‘[BANK]’’ and add ‘‘national bank or Federal savings association’’ in its place, wherever it appears; iii. Remove ‘‘[BANKS]’’ and ‘‘[BANK]s’’ and add ‘‘national banks and Federal savings associations’’ in their places, wherever they appear; iv. Remove ‘‘[BANK]’s’’ and ‘‘[BANK’S]’’ and add ‘‘national bank’s and Federal savings association’s’’ in their places, wherever they appear; v. Remove ‘‘[PART]’’ and add ‘‘Part 3’’ in its place, wherever it appears; and vi. Remove ‘‘[REGULATORY REPORT]’’ and add ‘‘Call Report’’ in its place, wherever it appears. 8. Section 3.2, as set forth at the end of the common preamble, is amended by adding the following definitions in alphabetical order: § 3.2 Definitions. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 * * * * * Core capital means Tier 1 capital, as calculated in accordance with § XX of subpart XX. * * * * * Federal savings association means an insured Federal savings association or an insured Federal savings bank chartered under section 5 of the Home Owners’ Loan Act of 1933. * * * * * Tangible capital means the amount of core capital (Tier 1 capital), as calculated in accordance with subpart B of this part, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. * * * * * 9. Section 3.10, as set forth at the end of the common preamble, is amended by adding paragraphs (a)(6), (b)(5), and (c)(5) to read as follows: § 3.10 Minimum Capital Requirements. (a) * * * (6) For Federal savings associations, a tangible capital ratio of 1.5 percent. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (b) * * * (5) Federal savings association tangible capital ratio. A Federal savings association’s tangible capital ratio is the ratio of the Federal savings association’s core capital (Tier 1 capital) to total adjusted assets as calculated under subpart B of this part. (c) * * * (5) Federal savings association tangible capital ratio. A Federal savings association’s tangible capital ratio is the ratio of the Federal savings association’s core capital (Tier 1 capital) to total adjusted assets as calculated under subpart B of this part. * * * * * 10. Section 3.22, as set forth at the end of the common preamble, is amended by adding paragraph (a)(8) to read as follows: § 3.22 Regulatory capital adjustments and deductions. (a) * * * (8)(i) A Federal savings association must deduct the aggregate amount of its outstanding investments, (both equity and debt) as well as retained earnings in subsidiaries that are not includable subsidiaries as defined in paragraph (a)(8)(iv) of this section (including those subsidiaries where the Federal savings association has a minority ownership interest) and may not consolidate the assets and liabilities of the subsidiary with those of the Federal savings association. Any such deductions shall be deducted from common equity tier 1 except as provided in paragraphs (a)(8)(ii) and (iii) of this section. (ii) If a Federal savings association has any investments (both debt and equity) in one or more subsidiaries engaged in any activity that would not fall within the scope of activities in which includable subsidiaries as defined in paragraph (a)(8)(iv) of this section may engage, it must deduct such investments from assets and, thus, common equity tier 1 in accordance with paragraph (a)(8)(i) of this section. The Federal savings association must first deduct from assets and, thus, common equity tier 1 the amount by which any investments in such subsidiary(ies) exceed the amount of such investments held by the Federal savings association as of April 12, 1989. Next the Federal savings association must deduct from assets and, thus, common equity tier 1 the Federal savings association’s investments in and extensions of credit to the subsidiary on the date as of which the savings association’s capital is being determined. (iii) If a Federal savings association holds a subsidiary (either directly or through a subsidiary) that is itself a PO 00000 Frm 00078 Fmt 4701 Sfmt 4702 domestic depository institution, the OCC may, in its sole discretion upon determining that the amount of Common Equity Tier 1 that would be required would be higher if the assets and liabilities of such subsidiary were consolidated with those of the parent Federal savings association than the amount that would be required if the parent Federal savings association’s investment were deducted pursuant to paragraphs (a)(8)(i) and (ii) of this section, consolidate the assets and liabilities of that subsidiary with those of the parent Federal savings association in calculating the capital adequacy of the parent Federal savings association, regardless of whether the subsidiary would otherwise be an includable subsidiary as defined in paragraph (a)(8)(iv) of this section. (iv) For purposes of this section, the term includable subsidiary means a subsidiary of a Federal savings association that is: (A) Engaged solely in activities not impermissible for a national bank; (B) Engaged in activities not permissible for a national bank, but only if acting solely as agent for its customers and such agency position is clearly documented in the Federal savings association’s files; (C) Engaged solely in mortgagebanking activities; (D)(1) Itself an insured depository institution or a company the sole investment of which is an insured depository institution, and (2) Was acquired by the parent Federal savings association prior to May 1, 1989; or (E) A subsidiary of any Federal savings association existing as a Federal savings association on August 9, 1989 that (1) Was chartered prior to October 15, 1982, as a savings bank or a cooperative bank under state law, or (2) Acquired its principal assets from an association that was chartered prior to October 15, 1982, as a savings bank or a cooperative bank under state law. * * * * * Subpart H—Establishment of Minimum Capital Ratios for an Individual National Bank or Individual Federal Savings Association 11. Revise the heading of newly redesignated subpart H as set forth above. § 3.300 [Amended] 12. Amend § 3.300, as set forth at the end of the common preamble, by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules place the phrase ‘‘national bank or Federal savings association’’; and b. Removing ‘‘§ 3.6’’, wherever it appears, and adding in its place the phrase ‘‘subpart B of this part’’. § 3.301 [Amended] 13. Amend § 3.301, as set forth at the end of the common preamble, by removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’. b. In the second sentence, by removing the phrase ‘‘subpart E’’ and adding in its place the phrase ‘‘subpart J’’; and c. In the third sentence by adding the phrase ‘‘or Federal savings association’s’’ after the word ‘‘bank’s’’, and removing the phrase ‘‘§ 3.6(a) or (b)’’ and adding in its place ‘‘subpart B of this part’’. § 3.500 [Amended] 14. Amend § 3.302, as set forth at the end of the common preamble, by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; and b. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’. 18. Amending § 3.500, as set forth at the end of the common preamble, by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; b. Removing the word ‘‘Office’’, wherever it appears, and adding in its place the word ‘‘OCC’’; and c. In the introductory text, removing the phrase ‘‘subpart C’’ and adding in its place the phrase ‘‘subpart H’’. § 3.303 § 3.501 § 3.302 [Amended] [Amended] [Amended] 15. Amend § 3.303, as set forth at the end of the common preamble, by: a. Removing from paragraph (a)’’§ 3.6’’ and adding in its place ‘‘subpart B of this part’’; b. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; c. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’; d. Removing the word ‘‘Office’’, wherever it appears, and adding in its place the word ‘‘OCC’’; e. Removing the word ‘‘Office’s’’, wherever it appears, and adding in its place the word ‘‘OCC’s’’; and 19. Amending, as set forth at the end of the common preamble, § 3.501 by: a. Removing the word ‘‘bank’’, and adding in its place the phrase ‘‘national bank or Federal savings association’’; and b. Removing the word ‘‘Office’’, and adding in its place the word ‘‘OCC’’. § 3.304 21. Amending, as set forth at the end of the common preamble, § 3.503 by: a. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’; and b. Removing the word ‘‘Office’’, and adding in its place the word ‘‘OCC’’. [Amended] 16. Amend § 3.304, as set forth at the end of the common preamble, by: a. Removing the word ‘‘bank’’ and adding in its place the phrase ‘‘national bank or Federal savings association’’; and b. Adding the phrase ‘‘for national banks and 12 CFR 109.1 through 109.21 for Federal savings associations’’ after ‘‘19.21’’. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 3.400 [Amended] 17. Section 3.400, as set forth at the end of the common preamble, is amended: a. In the first sentence, by removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’, and removing the phrase ‘‘subpart C’’ and adding in its place the phrase ‘‘subpart H’’; and VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 § 3.502 [Amended] 20. Amending, as set forth at the end of the common preamble, § 3.502 by: a. Removing the word ‘‘bank’’, and adding in its place the phrase ‘‘national bank or Federal savings association’’; and b. Removing the word ‘‘Office’’, and adding in its place the word ‘‘OCC’’. § 3.503 § 3.504 [Amended] [Amended] 22a. Amend, as set forth at the end of the common preamble, § 3.504 by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; b. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’; and c. Removing the word ‘‘Office’’, wherever it appears, and adding in its place the word ‘‘OCC’’. PO 00000 Frm 00079 Fmt 4701 Sfmt 4702 § 3.505 52869 [Amended] 22b. Amend § 3.505, as set forth at the end of the common preamble, by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; b. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’; and c. Removing the word ‘‘Office’’, wherever it appears, and adding in its place the word ‘‘OCC’’. § 3.506 [Amended] 22c. Amend, as set forth at the end of the common preamble, § 3.506 by: a. Removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank or Federal savings association’’; b. Removing the word ‘‘bank’s’’, wherever it appears, and adding in its place the phrase ‘‘national bank’s or Federal savings association’s’’; and c. Removing the word ‘‘Office’’, wherever it appears, and adding in its place the word ‘‘OCC’’. § 3.600 [Amended] 23. Amend newly redesignated § 3.600: a. In paragraphs (a) through (d), by removing the phrase ‘‘national banking associations’’, wherever it appears, and adding in its place the phrase ‘‘national banks’’; b. By removing the word ‘‘bank’’, wherever it appears, and adding in its place the phrase ‘‘national bank’’; c. In paragraph (a), by removing the word ‘‘bank’s’’ and adding in its place the phrase ‘‘national bank’s’’, and removing ‘‘§ 3.2’’ and adding in its place the phrase ‘‘subparts A–J of this part’’; and d. In paragraph (e)(7), by removing the word ‘‘bank-owned’’ and adding in its place the word ‘‘national bank-owned’’. PART 5—RULES, POLICIES, AND PROCEDURES FOR CORPORATE ACTIVITIES 24. The authority citation for part 5 continues to read as follows: Authority: 12 U.S.C. 1 et seq., 93a, 215a– 2, 215a–3, 481, and section 5136A of the Revised Statutes (12 U.S.C. 24a). 20. Section 5.39 is amended by revising paragraph (h)(1) and republishing paragraph (h)(2) for reader reference to read as follows: § 5.39 Financial subsidiaries. * * * * * (h) * * * (1) For purposes of determining regulatory capital the national bank may E:\FR\FM\30AUP2.SGM 30AUP2 52870 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules not consolidate the assets and liabilities of a financial subsidiary with those of the bank and must deduct the aggregate amount of its outstanding equity investment, including retained earnings, in its financial subsidiaries from regulatory capital as provided by § 3.22(a)(7); (2) Any published financial statement of the national bank shall, in addition to providing information prepared in accordance with generally accepted accounting principles, separately present financial information for the bank in the manner provided in paragraph (h)(1) of this section; * * * * * 21. Part 6 is revised to read as follows: PART 6—PROMPT CORRECTIVE ACTION Subpart A—Capital Categories Sec. 6.1 Authority, purpose, scope, other supervisory authority, and disclosure of capital categories. 6.2 Definitions. 6.3 Notice of capital category. 6.4 Capital measures and capital category definition. 6.5 Capital restoration plan 6.6 Mandatory and discretionary supervisory actions. Subpart B—Directives To Take Prompt Corrective Action 6.20 Scope. 6.21 Notice of intent to issue a directive. 6.22 Response to notice. 6.23 Decision and issuance of a prompt corrective action directive. 6.24 Request for modification or rescission of directive. 6.25 Enforcement of directive. Authority: 12 U.S.C. 93a, 1831o, 5412(b)(2)(B). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 6.1 Authority, purpose, scope, other supervisory authority, and disclosure of capital categories. (a) Authority. This part is issued by the Office of the Comptroller of the Currency (OCC) pursuant to section 38 (section 38) of the Federal Deposit Insurance Act (FDI Act) as added by section 131 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub. L. 102–242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o). (b) Purpose. Section 38 of the FDI Act establishes a framework of supervisory actions for insured depository institutions that are not adequately capitalized. The principal purpose of this subpart is to define, for insured national banks and insured Federal savings associations, the capital measures and capital levels, and for insured federal branches, comparable asset-based measures and levels, that are VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 used for determining the supervisory actions authorized under section 38 of the FDI Act. This part 6 also establishes procedures for submission and review of capital restoration plans and for issuance and review of directives and orders pursuant to section 38. (c) Scope. This subpart implements the provisions of section 38 of the FDI Act as they apply to insured national banks, insured federal branches, and insured Federal savings associations. Certain of these provisions also apply to officers, directors and employees of these insured institutions. Other provisions apply to any company that controls an insured national bank, insured Federal branch or insured Federal savings association and to the affiliates of an insured national bank, insured Federal branch, or insured Federal savings association. (d) Other supervisory authority. Neither section 38 nor this part in any way limits the authority of the OCC under any other provision of law to take supervisory actions to address unsafe or unsound practices, deficient capital levels, violations of law, unsafe or unsound conditions, or other practices. Action under section 38 of the FDI Act and this part may be taken independently of, in conjunction with, or in addition to any other enforcement action available to the OCC, including issuance of cease and desist orders, capital directives, approval or denial of applications or notices, assessment of civil money penalties, or any other actions authorized by law. (e) Disclosure of capital categories. The assignment of an insured national bank, insured federal branch, or insured Federal savings association under this subpart within a particular capital category is for purposes of implementing and applying the provisions of section 38. Unless permitted by the OCC or otherwise required by law, no national bank or Federal savings association may state in any advertisement or promotional material its capital category under this subpart or that the OCC or any other federal banking agency has assigned the national bank or Federal savings association to a particular capital category. § 6.2 Definitions. For purposes of section 38 and this part, the definitions in part 3 of this chapter shall apply. In addition, except as modified in this section or unless the context otherwise requires, the terms used in this subpart have the same meanings as set forth in section 38 and section 3 of the FDI Act. PO 00000 Frm 00080 Fmt 4701 Sfmt 4702 Advanced approaches national bank or advanced approaches Federal savings association means a national bank or Federal savings association that is subject to subpart E of part 3 of this chapter. Common equity Tier 1 capital means common equity Tier 1 capital, as defined in accordance with the OCC’s definition in § 3.2 of this chapter. Common equity tier 1 risk-based capital ratio means the ratio of common equity tier 1 capital to total riskweighted assets, as calculated in accordance with subpart B of part 3, as applicable. Control. (1) Control has the same meaning assigned to it in section 2 of the Bank Holding Company Act (12 U.S.C. 1841), and the term controlled shall be construed consistently with the term control. (2) Exclusion for fiduciary ownership. No insured depository institution or company controls another insured depository institution or company by virtue of its ownership or control of shares in a fiduciary capacity. Shares shall not be deemed to have been acquired in a fiduciary capacity if the acquiring insured depository institution or company has sole discretionary authority to exercise voting rights with respect thereto. (3) Exclusion for debts previously contracted. No insured depository institution or company controls another insured depository institution or company by virtue of its ownership or control of shares acquired in securing or collecting a debt previously contracted in good faith, until two years after the date of acquisition. The two-year period may be extended at the discretion of the appropriate federal banking agency for up to three one-year periods. Controlling person means any person having control of an insured depository institution and any company controlled by that person. Federal savings association means an insured Federal savings association or an insured Federal savings bank chartered under section 5 of the Home Owners’ Loan Act of 1933. Leverage ratio means the ratio of Tier 1 capital to average total consolidated assets, as calculated in accordance with subpart B of part 3. Management fee means any payment of money or provision of any other thing of value to a company or individual for the provision of management services or advice to the national bank or Federal savings association or related overhead expenses, including payments related to supervisory, executive, managerial, or policymaking functions, other than compensation to an individual in the E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules individual’s capacity as an officer or employee of the national bank or Federal savings association. National bank means all insured national banks and all insured federal branches, except where otherwise provided in this subpart. Supplementary leverage ratio means the ratio of Tier 1 capital to total leverage exposure, as calculated in accordance with subpart B of part 3. Tangible equity means the amount of Tier 1 capital, as calculated in accordance with subpart B of part 3, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. Tier 1 capital means the amount of Tier 1 capital as defined in subpart B of this chapter. Tier 1 risk-based capital ratio means the ratio of Tier 1 capital to risk weighted assets, as calculated in accordance with subpart B of part 3. Total assets means quarterly average total assets as reported in a national bank’s or Federal savings association’s Consolidated Reports of Condition and Income (Call Report), minus any deduction of assets as provided in the definition of tangible equity. The OCC reserves the right to require a national bank or Federal savings association to compute and maintain its capital ratios on the basis of actual, rather than average, total assets when computing tangible equity. Total leverage exposure means the total leverage exposure, as calculated in accordance with subpart B of part 3. Total risk-based capital ratio means the ratio of total capital to total riskweighted assets, as calculated in accordance with subpart B of part 3. Total risk-weighted assets means standardized total risk-weighted assets, and for an advanced approaches bank or advanced approaches Federal savings association also includes advanced approaches total risk-weighted assets, as defined in subpart B of part 3. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 6.3 Notice of capital category. (a) Effective date of determination of capital category. A national bank or Federal savings association shall be deemed to be within a given capital category for purposes of section 38 of the FDI Act and this part as of the date the national bank or Federal savings association is notified of, or is deemed to have notice of, its capital category pursuant to paragraph (b) of this section. (b) Notice of capital category. A national bank or Federal savings association shall be deemed to have been notified of its capital levels and its VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 capital category as of the most recent date: (1) A Consolidated Report of Condition and Income (Call Report) is required to be filed with the OCC; (2) A final report of examination is delivered to the national bank or Federal savings association; or (3) Written notice is provided by the OCC to the national bank or Federal savings association of its capital category for purposes of section 38 of the FDI Act and this part or that the national bank’s or Federal savings association’s capital category has changed as provided in paragraph (c) of this section or § 6.1 of this subpart and subpart M of part 19 of this chapter with respect to national banks and § 165.8 with respect to Federal savings associations. (c) Adjustments to reported capital levels and capital category. (1) Notice of adjustment by national bank or Federal savings association. A national bank or Federal savings association shall provide the OCC with written notice that an adjustment to the national bank’s or Federal savings association’s capital category may have occurred no later than 15 calendar days following the date that any material event has occurred that would cause the national bank or Federal savings association to be placed in a lower capital category from the category assigned to the national bank or Federal savings association for purposes of section 38 and this part on the basis of the national bank’s or Federal savings association’s most recent Call Report or report of examination. (2) Determination to change capital category. After receiving notice pursuant to paragraph (c)(1) of this section, the OCC shall determine whether to change the capital category of the national bank or Federal savings association and shall notify the national bank or Federal savings association of the OCC’s determination. § 6.4 Capital measures and capital category definition. (a) Capital measures. (1) Capital measures applicable before January 1, 2015. On or before December 31, 2014, for purposes of section 38 and this part, the relevant capital measures for all national banks and Federal savings associations are: (i) Total Risk-Based Capital Measure: the total risk-based capital ratio; (ii) Tier 1 Risk-Based Capital Measure: the tier 1 risk-based capital ratio; and (iii) Leverage Measure: the leverage ratio. (2) Capital measures applicable on and after January 1, 2015. On January 1, PO 00000 Frm 00081 Fmt 4701 Sfmt 4702 52871 2015 and thereafter, for purposes of section 38 and this part, the relevant capital measures are: (i) Total Risk-Based Capital Measure: the total risk-based capital ratio; (ii) Tier 1 Risk-Based Capital Measure: the tier 1 risk-based capital ratio; (iii) Common Equity Tier 1 Capital Measure: the common equity tier 1 riskbased capital ratio; and (iv) The Leverage Measure: (A) the leverage ratio, and (B) with respect to an advanced approaches national bank or advanced approaches Federal savings association, on January 1, 2018, and thereafter, the supplementary leverage ratio. (b) Capital categories applicable before January 1, 2015. On or before December 31, 2014, for purposes of the provisions of section 38 and this part, a national bank or Federal savings association shall be deemed to be: (1) ‘‘Well capitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of 10.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: the bank or Federal savings association has a tier 1 risk-based capital ratio of 6.0 percent or greater; (iii) Leverage Measure: the national bank or Federal savings association has a leverage ratio of 5.0 percent or greater; and (iv) The national bank or Federal savings association is not subject to any written agreement, order or capital directive, or prompt corrective action directive issued by the OCC pursuant to section 8 of the FDI Act, the International Lending Supervision Act of 1983 (12 U.S.C. 3907), the Home Owners’ Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)), or section 38 of the FDI Act, or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of 8.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of 4.0 percent or greater; (iii) Leverage Measure: (A) The national bank or Federal savings association has a leverage ratio of 4.0 percent or greater; or (B) The national bank or Federal savings association has a leverage ratio of 3.0 percent or greater if the national bank or Federal savings association is rated composite 1 under the CAMELS rating system in the most recent examination of the national bank and or E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52872 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules Federal savings association is not experiencing or anticipating any significant growth; and (iv) Does not meet the definition of a ‘‘well capitalized’’ national bank or Federal savings association. (3) ‘‘Undercapitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of less than 8.0 percent; or (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of less than 4.0 percent; or (iii) Leverage Measure: (A) Except as provided in paragraph (b)(2)(iii)(B) of this section, the national bank or Federal savings association has a leverage ratio of less than 4.0 percent; or (iv) The national bank or Federal savings association has a leverage ratio of less than 3.0 percent, if the national bank or Federal savings association is rated composite 1 under the CAMELS rating system in the most recent examination of the national bank or Federal savings association and is not experiencing or anticipating significant growth. (4) ‘‘Significantly undercapitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of less than 6.0 percent; or (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of less than 3.0 percent; or (iii) Leverage Measure: the national bank or Federal savings association has a leverage ratio of less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the national bank or Federal savings association has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. (c) Capital categories applicable on and after January 1, 2015. On January 1, 2015, and thereafter, for purposes of the provisions of section 38 and this part, a national bank or Federal savings association shall be deemed to be: (1) ‘‘Well capitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of 10.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of 8.0 percent or greater; (iii) Common Equity Tier 1 Capital Measure: the national bank or Federal savings association has a common equity tier 1 risk-based capital ratio of 6.5 percent or greater; VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (iv) Leverage Measure: the national bank or Federal savings association has a leverage ratio of 5.0 or greater; and (iv) The national bank or Federal savings association is not subject to any written agreement, order or capital directive, or prompt corrective action directive issued by the OCC pursuant to section 8 of the FDI Act, the International Lending Supervision Act of 1983 (12 U.S.C. 3907), the Home Owners’ Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)), or section 38 of the FDI Act, or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of 8.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of 6.0 percent or greater; (iii) Common Equity Tier 1 Capital Measure: the national bank or Federal savings association has a common equity tier 1 risk-based capital ratio of 4.5 percent or greater; (iv) Leverage Measure: (A) The national bank or Federal savings association has a leverage ratio of 4.0 percent or greater; and (B) With respect to an advanced approaches national bank or advanced approaches Federal savings association, on January 1, 2018 and thereafter, the national bank or Federal savings association has a supplementary leverage ratio of 3.0 percent or greater; and (v) The national bank or Federal savings association does not meet the definition of a ‘‘well capitalized’’ national bank or Federal savings association. (3) ‘‘Undercapitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of less than 8.0 percent; (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of less than 6.0 percent; (iii) Common Equity Tier 1 Capital Measure: the national bank or Federal savings association has a common equity tier 1 risk-based capital ratio of less than 4.5 percent; or (iv) Leverage Measure: (A) The national bank or Federal savings association has a leverage ratio of less than 4.0 percent; or (B) With respect to an advanced approaches national bank or advanced approaches Federal savings association, on January 1, 2018, and thereafter, the PO 00000 Frm 00082 Fmt 4701 Sfmt 4702 national bank or Federal savings association has a supplementary leverage ratio of less than 3.0 percent. (4) ‘‘Significantly undercapitalized’’ if: (i) Total Risk-Based Capital Measure: the national bank or Federal savings association has a total risk-based capital ratio of less than 6.0 percent; (ii) Tier 1 Risk-Based Capital Measure: the national bank or Federal savings association has a tier 1 risk-based capital ratio of less than 4.0 percent; (iii) Common Equity Tier 1 Capital Measure: the national bank or Federal savings association has a common equity tier 1 risk-based capital ratio of less than 3.0 percent; or (iv) Leverage Measure: the national bank or Federal savings association has a leverage ratio of less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the national bank or Federal savings association has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. (d) Capital categories for insured federal branches. For purposes of the provisions of section 38 of the FDI Act and this part, an insured federal branch shall be deemed to be: (1) Well capitalized if the insured federal branch: (i) Maintains the pledge of assets required under 12 CFR 347.209; and (ii) Maintains the eligible assets prescribed under 12 CFR 347.210 at 108 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Has not received written notification from: (A) The OCC to increase its capital equivalency deposit pursuant to § 28.15 of this chapter, or to comply with asset maintenance requirements pursuant to § 28.20 of this chapter; or (B) The FDIC to pledge additional assets pursuant to 12 CFR 346.209 or to maintain a higher ratio of eligible assets pursuant to 12 CFR 346.210. (2) Adequately capitalized if the insured federal branch: (i) Maintains the pledge of assets prescribed under 12 CFR 346.209; and (ii) Maintains the eligible assets prescribed under 12 CFR 346.210 at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Does not meet the definition of a well capitalized insured federal branch. (3) Undercapitalized if the insured federal branch: (i) Fails to maintain the pledge of assets required under 12 CFR 346.209; or E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (ii) Fails to maintain the eligible assets prescribed under 12 CFR 346.210 at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (4) Significantly undercapitalized if it fails to maintain the eligible assets prescribed under 12 CFR 346.210 at 104 percent or more of the preceding quarter’s average book value of the insured federal branch’s third-party liabilities. (5) Critically undercapitalized if it fails to maintain the eligible assets prescribed under 12 CFR 346.210 at 102 percent or more of the preceding quarter’s average book value of the insured federal branch’s third-party liabilities. (e) Reclassification based on supervisory criteria other than capital. The OCC may reclassify a well capitalized national bank or Federal savings association as adequately capitalized and may require an adequately capitalized or an undercapitalized national bank or Federal savings association to comply with certain mandatory or discretionary supervisory actions as if the national bank or Federal savings association were in the next lower capital category (except that the OCC may not reclassify a significantly undercapitalized national bank or Federal savings association as critically undercapitalized) (each of these actions are hereinafter referred to generally as reclassifications) in the following circumstances: (1) Unsafe or unsound condition. The OCC has determined, after notice and opportunity for hearing pursuant to subpart M of part 19 of this chapter with respect to national banks and § 165.8 with respect to Federal savings associations, that the national bank or Federal savings association is in unsafe or unsound condition; or (2) Unsafe or unsound practice. The OCC has determined, after notice and opportunity for hearing pursuant to subpart M of part 19 of this chapter with respect to national banks and § 165.8 with respect to Federal savings associations, that in the most recent examination of the national bank or Federal savings association, the national bank or Federal savings association received, and has not corrected a lessthan-satisfactory rating for any of the categories of asset quality, management, earnings, or liquidity. § 6.5 Capital restoration plan. (a) Schedule for filing plan. (1) In general. A national bank or Federal savings association shall file a written capital restoration plan with the OCC within 45 days of the date that the VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 national bank or Federal savings association receives notice or is deemed to have notice that the national bank or Federal savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized, unless the OCC notifies the national bank or Federal savings association in writing that the plan is to be filed within a different period. An adequately capitalized national bank or Federal savings association that has been required pursuant to § 6.4 and subpart M of part 19 of this chapter with respect to national banks and § 165.8 with respect to Federal savings associations to comply with supervisory actions as if the national bank or Federal savings association were undercapitalized is not required to submit a capital restoration plan solely by virtue of the reclassification. (2) Additional capital restoration plans. Notwithstanding paragraph (a)(1) of this section, a national bank or Federal savings association that has already submitted and is operating under a capital restoration plan approved under section 38 and this subpart is not required to submit an additional capital restoration plan based on a revised calculation of its capital measures or a reclassification of the institution under § 6.4 and subpart M of part 19 of this chapter with respect to national banks and §§ 6.4 and 165.8 with respect to Federal savings associations unless the OCC notifies the national bank or Federal savings association that it must submit a new or revised capital plan. A national bank or Federal savings association that is notified that it must submit a new or revised capital restoration plan shall file the plan in writing with the OCC within 45 days of receiving such notice, unless the OCC notifies the national bank or Federal savings association in writing that the plan must be filed within a different period. (b) Contents of plan. All financial data submitted in connection with a capital restoration plan shall be prepared in accordance with the instructions provided on the Call Report, unless the OCC instructs otherwise. The capital restoration plan shall include all of the information required to be filed under section 38(e)(2) of the FDI Act. A national bank or Federal savings association that is required to submit a capital restoration plan as the result of a reclassification of the national bank or Federal savings association, pursuant to § 6.4 for both national banks and Federal savings associations and subpart M of part 19 of this chapter with respect to national banks and § 165.8 with PO 00000 Frm 00083 Fmt 4701 Sfmt 4702 52873 respect to Federal savings associations, shall include a description of the steps the national bank or Federal savings association will take to correct the unsafe or unsound condition or practice. No plan shall be accepted unless it includes any performance guarantee described in section 38(e)(2)(C) of that Act by each company that controls the national bank or Federal savings association. (c) Review of capital restoration plans. Within 60 days after receiving a capital restoration plan under this subpart, the OCC shall provide written notice to the national bank or Federal savings association of whether the plan has been approved. The OCC may extend the time within which notice regarding approval of a plan shall be provided. (d) Disapproval of capital restoration plan. If a capital restoration plan is not approved by the OCC, the national bank or Federal savings association shall submit a revised capital restoration plan within the time specified by the OCC. Upon receiving notice that its capital restoration plan has not been approved, any undercapitalized national bank or Federal savings association (as defined in § 6.4) shall be subject to all of the provisions of section 38 and this part applicable to significantly undercapitalized institutions. These provisions shall be applicable until such time as a new or revised capital restoration plan submitted by the national bank or Federal savings association has been approved by the OCC. (e) Failure to submit a capital restoration plan. A national bank or Federal savings association that is undercapitalized (as defined in § 6.4) and that fails to submit a written capital restoration plan within the period provided in this section shall, upon the expiration of that period, be subject to all of the provisions of section 38 and this part applicable to significantly undercapitalized national banks or Federal savings associations. (f) Failure to implement a capital restoration plan. Any undercapitalized national bank or Federal savings association that fails, in any material respect, to implement a capital restoration plan shall be subject to all of the provisions of section 38 and this part applicable to significantly undercapitalized national banks or Federal savings associations. (g) Amendment of capital restoration plan. A national bank or Federal savings association that has submitted an approved capital restoration plan may, after prior written notice to and approval by the OCC, amend the plan to reflect a change in circumstance. Until E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52874 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules such time as a proposed amendment has been approved, the national bank or Federal savings association shall implement the capital restoration plan as approved prior to the proposed amendment. (h) Notice to FDIC. Within 45 days of the effective date of OCC approval of a capital restoration plan, or any amendment to a capital restoration plan, the OCC shall provide a copy of the plan or amendment to the Federal Deposit Insurance Corporation. (i) Performance guarantee by companies that control a bank or Federal savings association. (1) Limitation on liability.(i) Amount limitation. The aggregate liability under the guarantee provided under section 38 and this subpart for all companies that control a specific national bank or Federal savings association that is required to submit a capital restoration plan under this subpart shall be limited to the lesser of: (A) An amount equal to 5.0 percent of the national bank’s or Federal savings association’s total assets at the time the national bank or Federal savings association was notified or deemed to have notice that the national bank or Federal savings association was undercapitalized; or (B) The amount necessary to restore the relevant capital measures of the national bank or Federal savings association to the levels required for the national bank or Federal savings association to be classified as adequately capitalized, as those capital measures and levels are defined at the time that the national bank or Federal savings association initially fails to comply with a capital restoration plan under this subpart. (ii) Limit on duration. The guarantee and limit of liability under section 38 and this subpart shall expire after the OCC notifies the national bank or Federal savings association that it has remained adequately capitalized for each of four consecutive calendar quarters. The expiration or fulfillment by a company of a guarantee of a capital restoration plan shall not limit the liability of the company under any guarantee required or provided in connection with any capital restoration plan filed by the same national bank or Federal savings association after expiration of the first guarantee. (iii) Collection on guarantee. Each company that controls a given national bank or Federal savings association shall be jointly and severally liable for the guarantee for such national bank or Federal savings association as required under section 38 and this subpart, and the OCC may require payment of the full VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 amount of that guarantee from any or all of the companies issuing the guarantee. (2) Failure to provide guarantee. In the event that a national bank or Federal savings association that is controlled by any company submits a capital restoration plan that does not contain the guarantee required under section 38(e)(2) of the FDI Act, the national bank or Federal savings association shall, upon submission of the plan, be subject to the provisions of section 38 and this part that are applicable to national banks or Federal savings associations that have not submitted an acceptable capital restoration plan. (3) Failure to perform guarantee. Failure by any company that controls a national bank or Federal savings association to perform fully its guarantee of any capital plan shall constitute a material failure to implement the plan for purposes of section 38(f) of the FDI Act. Upon such failure, the national bank or Federal savings association shall be subject to the provisions of section 38 and this part that are applicable to national banks or Federal savings associations that have failed in a material respect to implement a capital restoration plan. (j) Enforcement of capital restoration plan. The failure of a national bank or Federal savings association to implement, in any material respect, a capital restoration plan required under section 38 and this section shall subject the national bank or Federal savings association to the assessment of civil money penalties pursuant to section 8(i)(2)(A) of the FDI Act. § 6.6 Mandatory and discretionary supervisory actions. (a) Mandatory supervisory actions. (1) Provisions applicable to all national banks and Federal savings associations. All national banks and Federal savings associations are subject to the restrictions contained in section 38(d) of the FDI Act on payment of capital distributions and management fees. (2) Provisions applicable to undercapitalized, significantly undercapitalized, and critically undercapitalized national banks or Federal savings associations. Immediately upon receiving notice or being deemed to have notice, as provided in § 6.3, that the national bank or Federal savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized, the national bank or Federal savings association shall become subject to the provisions of section 38 of the FDI Act— PO 00000 Frm 00084 Fmt 4701 Sfmt 4702 (i) Restricting payment of capital distributions and management fees (section 38(d)); (ii) Requiring that the OCC monitor the condition of the national bank or Federal savings association (section 38(e)(1)); (iii) Requiring submission of a capital restoration plan within the schedule established in this subpart (section 38(e)(2)); (iv) Restricting the growth of the national bank’s or Federal savings association’s assets (section 38(e)(3)); and (v) Requiring prior approval of certain expansion proposals (section 38(e)(4)). (3) Additional provisions applicable to significantly undercapitalized, and critically undercapitalized national banks or Federal savings associations. In addition to the provisions of section 38 of the FDI Act described in paragraph (a)(2) of this section, immediately upon receiving notice or being deemed to have notice, as provided in this subpart, that the national bank or Federal savings association is significantly undercapitalized, or critically undercapitalized or that the national bank or Federal savings association is subject to the provisions applicable to institutions that are significantly undercapitalized because it has failed to submit or implement, in any material respect, an acceptable capital restoration plan, the national bank or Federal savings association shall become subject to the provisions of section 38 of the FDI Act that restrict compensation paid to senior executive officers of the institution (section 38(f)(4)). (4) Additional provisions applicable to critically undercapitalized national banks or Federal savings associations. In addition to the provisions of section 38 of the FDI Act described in paragraphs (a)(2) and (3) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 6.3, that the national bank or Federal savings association is critically undercapitalized, the national bank or Federal savings association shall become subject to the provisions of section 38 of the FDI Act— (i) Restricting the activities of the national bank or Federal savings association (section 38 (h)(1)); and (ii) Restricting payments on subordinated debt of the national bank or Federal savings association (section 38 (h)(2)). (b) Discretionary supervisory actions. In taking any action under section 38 that is within the OCC’s discretion to take in connection with a national bank or Federal savings association that is deemed to be undercapitalized, E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules significantly undercapitalized, or critically undercapitalized, or has been reclassified as undercapitalized or significantly undercapitalized; an officer or director of such national bank or Federal savings association; or a company that controls such national bank or Federal savings association, the OCC shall follow the procedures for issuing directives under subpart B of this part for both national banks and Federal savings associations and subpart N of part 19 of this chapter with respect to national banks and subpart B and 12 CFR 165.9 with respect to Federal savings associations, unless otherwise provided in section 38 of the FDI Act or this part. Subpart B—Directives to Take Prompt Corrective Action § 6.20 Scope. The rules and procedures set forth in this subpart apply to insured national banks, insured federal branches, Federal savings associations, and senior executive officers and directors of national banks and Federal savings associations that are subject to the provisions of section 38 of the Federal Deposit Insurance Act (section 38) and subpart A of this part. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 6.21 Notice of intent to issue a directive. (a) Notice of intent to issue a directive. (1) In general. The OCC shall provide an undercapitalized, significantly undercapitalized, or critically undercapitalized national bank or Federal savings association prior written notice of the OCC’s intention to issue a directive requiring such national bank, Federal savings association, or company to take actions or to follow proscriptions described in section 38 that are within the OCC’s discretion to require or impose under section 38 of the FDI Act, including section 38(e)(5), (f)(2), (f)(3), or (f)(5). The national bank or Federal savings association shall have such time to respond to a proposed directive as provided under § 6.22. (2) Immediate issuance of final directive. If the OCC finds it necessary in order to carry out the purposes of section 38 of the FDI Act, the OCC may, without providing the notice prescribed in paragraph (a)(1) of this section, issue a directive requiring a national bank or Federal savings association immediately to take actions or to follow proscriptions described in section 38 that are within the OCC’s discretion to require or impose under section 38 of the FDI Act, including section 38(e)(5), (f)(2), (f)(3), or (f)(5). A national bank or Federal savings association that is subject to such an immediately effective directive VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 52875 may submit a written appeal of the directive to the OCC. Such an appeal must be received by the OCC within 14 calendar days of the issuance of the directive, unless the OCC permits a longer period. The OCC shall consider any such appeal, if filed in a timely matter, within 60 days of receiving the appeal. During such period of review, the directive shall remain in effect unless the OCC, in its sole discretion, stays the effectiveness of the directive. (b) Contents of notice. A notice of intention to issue a directive shall include: (1) A statement of the national bank’s or Federal savings association’s capital measures and capital levels; (2) A description of the restrictions, prohibitions or affirmative actions that the OCC proposes to impose or require; (3) The proposed date when such restrictions or prohibitions would be effective or the proposed date for completion of such affirmative actions; and (4) The date by which the national bank or Federal savings association subject to the directive may file with the OCC a written response to the notice. § 6.23 Decision and issuance of a prompt corrective action directive. § 6.22 (a) Judicial remedies. Whenever a national bank or Federal savings association fails to comply with a directive issued under section 38, the OCC may seek enforcement of the directive in the appropriate United States district court pursuant to section 8(i)(1) of the FDI Act. (b) Administrative remedies. Pursuant to section 8(i)(2)(A) of the FDI Act, the OCC may assess a civil money penalty against any national bank or Federal savings association that violates or otherwise fails to comply with any final directive issued under section 38 and against any institution-affiliated party who participates in such violation or noncompliance. (c) Other enforcement action. In addition to the actions described in paragraphs (a) and (b) of this section, the OCC may seek enforcement of the provisions of section 38 or this part through any other judicial or administrative proceeding authorized by law. Response to notice. (a) Time for response. A national bank or Federal savings association may file a written response to a notice of intent to issue a directive within the time period set by the OCC. The date shall be at least 14 calendar days from the date of the notice unless the OCC determines that a shorter period is appropriate in light of the financial condition of the national bank or Federal savings association or other relevant circumstances. (b) Content of response. The response should include: (1) An explanation why the action proposed by the OCC is not an appropriate exercise of discretion under section 38; (2) Any recommended modification of the proposed directive; and (3) Any other relevant information, mitigating circumstances, documentation, or other evidence in support of the position of the national bank or Federal savings association regarding the proposed directive. (c) Failure to file response. Failure by a national bank or Federal savings association to file with the OCC, within the specified time period, a written response to a proposed directive shall constitute a waiver of the opportunity to respond and shall constitute consent to the issuance of the directive. PO 00000 Frm 00085 Fmt 4701 Sfmt 4702 (a) OCC consideration of response. After considering the response, the OCC may: (1) Issue the directive as proposed or in modified form; (2) Determine not to issue the directive and so notify the national bank or Federal savings association; or (3) Seek additional information or clarification of the response from the national bank or Federal savings association, or any other relevant source. (b) [Reserved] § 6.24 Request for modification or rescission of directive. Any national bank or Federal savings association that is subject to a directive under this subpart may, upon a change in circumstances, request in writing that the OCC reconsider the terms of the directive, and may propose that the directive be rescinded or modified. Unless otherwise ordered by the OCC, the directive shall continue in place while such request is pending before the OCC. § 6.25 Enforcement of directive. PART 165—PROMPT CORRECTIVE ACTION 22. The authority citation for part 165 continues to read as follows: Authority: 12 U.S.C. 1831o, 5412(b)(2)(B). § 165.1—165.7, 165.10 [Removed] 23. Sections 165.1—165.7 and 165.10 are removed. E:\FR\FM\30AUP2.SGM 30AUP2 52876 § 165.8 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules [Amended] 24. Section 165.8 is amended in paragraphs (a)(1)(i)(A) introductory text and (a)(1)(ii) by removing the phrases ‘‘§ 165.4(c) of this part’’ and ‘‘§ 165.4(c)(1)’’ respectively, and adding in their place the phrase ‘‘12 CFR 6.4(d)’’. PART 167—[REMOVED] 25. Under the authority of 12 U.S.C. 93a and 5412(b)(2)(B), part 167 is removed. BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM 12 CFR Chapter II Authority and Issuance For the reasons set forth in the common preamble, parts 208 and 225 of chapter II of title 12 of the Code of Federal Regulations are proposed to be amended as follows: PART 208—MEMBERSHIP OF STATE BANKING INSTITUTIONS IN THE FEDERAL RESERVE SYSTEM (REGULATION H) 26. The authority citation for part 208 is revised to read as follows: Authority: 12 U.S.C. 24, 36, 92a, 93a, 248(a), 248(c), 321–338a, 371d, 461, 481–486, 601, 611, 1814, 1816, 1818, 1820(d)(9), 1833(j), 1828(o), 1831, 1831o, 1831p–1, 1831r–1, 1831w, 1831x, 1835a, 1882, 2901– 2907, 3105, 3310, 3331–3351, 3905–3909, and 5371; 15 U.S.C. 78b, 78I(b), 78l(i), 780– 4(c)(5), 78q, 78q–1, and 78w, 1681s, 1681w, 6801, and 6805; 31 U.S.C. 5318; 42 U.S.C. 4012a, 4104a, 4104b, 4106 and 4128. Subpart A—General Membership and Branching Requirements 27. In § 208.2, revise paragraph (d) to read as follows: § 208.2 Definitions. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 * * * * * (d) Capital stock and surplus means, unless otherwise provided in this part, or by statute, tier 1 and tier 2 capital included in a member bank’s risk-based capital (as defined in § 217.2 of Regulation Q) and the balance of a member bank’s allowance for loan and lease losses not included in its tier 2 capital for calculation of risk-based capital, based on the bank’s most recent Report of Condition and Income filed under 12 U.S.C. 324. * * * * * 28. Revise § 208.4 to read as follows: § 208.4 Capital adequacy. (a) Adequacy. A member bank’s capital, calculated in accordance with Part 217, shall be at all times adequate VerDate Mar<15>2010 19:45 Aug 29, 2012 Jkt 226001 in relation to the character and condition liabilities and other corporate responsibilities. If at any time, in light of all the circumstances, the bank’s capital appears inadequate in relation to its assets, liabilities, and responsibilities, the bank shall increase the amount of its capital, within such period as the Board deems reasonable, to an amount which, in the judgment of the Board, shall be adequate. (b) Standards for evaluating capital adequacy. Standards and measures, by which the Board evaluates the capital adequacy of member banks for riskbased capital purposes and for leverage measurement purposes, are located in part 217. Subpart B—Investments and Loans 29. In § 208.23, revise paragraph (c) to read as follows: § 208.23 Agricultural loan loss amortization. * * * * * (c) Accounting for amortization. Any bank that is permitted to amortize losses in accordance with paragraph (b) of this section may restate its capital and other relevant accounts and account for future authorized deferrals and authorization in accordance with the instructions to the FFIEC Consolidated Reports of Condition and Income. Any resulting increase in the capital account shall be included in capital pursuant to part 217. * * * * * Subpart D—Prompt Corrective Action 30. The authority citation for subpart D continues to read as follows: Authority: Subpart D of Regulation H (12 CFR part 208, Subpart D) is issued by the Board of Governors of the Federal Reserve System (Board) under section 38 (section 38) of the FDI Act as added by section 131 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub. L. 102–242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o). 31. Revise § 208.41 to read as follows: § 208.41 Definitions for purposes of this subpart. For purposes of this subpart, except as modified in this section or unless the context otherwise requires, the terms used have the same meanings as set forth in section 38 and section 3 of the FDI Act. (a) Advanced approaches bank means a bank that is described in § 217.100(b)(1) of Regulation Q (12 CFR 217.100(b)(1)). (b) Bank means an insured depository institution as defined in section 3 of the FDI Act (12 U.S.C. 1813). (c) Common equity tier 1 capital means the amount of capital as defined PO 00000 Frm 00086 Fmt 4701 Sfmt 4702 in § 217.2 of Regulation Q (12 CFR 217.2). (d) Common equity tier 1 risk-based capital ratio means the ratio of common equity tier 1 capital to total riskweighted assets, as calculated in accordance with § 217.10(b)(1) or § 217.10(c)(1) of Regulation Q (12 CFR 217.10(b)(1), 12 CFR 217.10(c)(1)), as applicable. (e) Control—(1) Control has the same meaning assigned to it in section 2 of the Bank Holding Company Act (12 U.S.C. 1841), and the term controlled shall be construed consistently with the term control. (2) Exclusion for fiduciary ownership. No insured depository institution or company controls another insured depository institution or company by virtue of its ownership or control of shares in a fiduciary capacity. Shares shall not be deemed to have been acquired in a fiduciary capacity if the acquiring insured depository institution or company has sole discretionary authority to exercise voting rights with respect to the shares. (3) Exclusion for debts previously contracted. No insured depository institution or company controls another insured depository institution or company by virtue of its ownership or control of shares acquired in securing or collecting a debt previously contracted in good faith, until two years after the date of acquisition. The two-year period may be extended at the discretion of the appropriate Federal banking agency for up to three one-year periods. (f) Controlling person means any person having control of an insured depository institution and any company controlled by that person. (g) Leverage ratio means the ratio of tier 1 capital to average total consolidated assets, as calculated in accordance with § 217.10 of Regulation Q (12 CFR 217.10). (h) Management fee means any payment of money or provision of any other thing of value to a company or individual for the provision of management services or advice to the bank, or related overhead expenses, including payments related to supervisory, executive, managerial, or policy making functions, other than compensation to an individual in the individual’s capacity as an officer or employee of the bank. (i) Supplementary leverage ratio means the ratio of tier 1 capital to total leverage exposure, as calculated in accordance with § 217.10 of Regulation Q (12 CFR 217.10). (j) Tangible equity means the amount of tier 1 capital, plus the amount of outstanding perpetual preferred stock E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (including related surplus) not included in tier 1 capital. (k) Tier 1 capital means the amount of capital as defined in § 217.20 of Regulation Q (12 CFR 217.20). (l) Tier 1 risk-based capital ratio means the ratio of tier 1 capital to total risk-weighted assets, as calculated in accordance with § 217.10(b)(2) or § 217.10(c)(2) of Regulation Q (12 CFR 217.10(b)(2), 12 CFR 217.10(c)(2)), as applicable. (m) Total assets means quarterly average total assets as reported in a bank’s Report of Condition and Income (Call Report), minus items deducted from tier 1 capital. At its discretion the Federal Reserve may calculate total assets using a bank’s period-end assets rather than quarterly average assets. (n) Total leverage exposure means the total leverage exposure, as calculated in accordance with § 217.11 of Regulation Q (12 CFR 217.11). (o) Total risk-based capital ratio means the ratio of total capital to total risk-weighted assets, as calculated in accordance with § 217.10(b)(3) or § 217.10(c)(3) of Regulation Q (12 CFR 217.10(b)(3), 12 CFR 217.10(c)(3)), as applicable. (p) Total risk-weighted assets means standardized total risk-weighted assets, and for an advanced approaches bank also includes advanced approaches total risk-weighted assets, as defined in § 217.2 of Regulation Q (12 CFR 217.2). 32. In § 208.43, revise paragraphs (a) and (b), redesignate paragraph (c) as paragraph (d), and add a new paragraph (c) to read as follows: mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 208.43 Capital measures and capital category definitions. (a) Capital measures. (1) Capital measures applicable before January 1, 2015. On or before December 31, 2014, for purposes of section 38 and this subpart, the relevant capital measures for all banks are: (i) Total Risk-Based Capital Measure: The total risk-based capital ratio; (ii) Tier 1 Risk-Based Capital Measure: The tier 1 risk-based capital ratio; and (iii) Leverage Measure: The leverage ratio. (2) Capital measures applicable on and after January 1, 2015. On January 1, 2015 and thereafter, for purposes of section 38 and this subpart, the relevant capital measures are: (i) Total Risk-Based Capital Measure: The total risk-based capital ratio; (ii) Tier 1 Risk-Based Capital Measure: The tier 1 risk-based capital ratio; (iii) Common Equity Tier 1 Capital Measure: The common equity tier 1 riskbased capital ratio; and (iv) Leverage Measure: VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (A) The leverage ratio, and (B) With respect to an advanced approaches bank, on January 1, 2018, and thereafter, the supplementary leverage ratio. (b) Capital categories applicable before January 1, 2015. On or before December 31, 2014, for purposes of section 38 of the FDI Act and this subpart, a member bank is deemed to be: (1) ‘‘Well capitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of 10.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of 6.0 percent or greater; (iii) Leverage Measure: The bank has a leverage ratio of 5.0 percent or greater; and (iv) The bank is not subject to any written agreement, order, capital directive, or prompt corrective action directive issued by the Board pursuant to section 8 of the FDI Act, the International Lending Supervision Act of 1983 (12 U.S.C. 3907), or section 38 of the FDI Act, or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of 8.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of 4.0 percent or greater; (iii) Leverage Measure: (A) The bank has a leverage ratio of 4.0 percent or greater; or (B) The bank has a leverage ratio of 3.0 percent or greater if the bank is rated composite 1 under the CAMELS rating system in the most recent examination of the bank and is not experiencing or anticipating any significant growth; and (iv) Does not meet the definition of a ‘‘well capitalized’’ bank. (3) ‘‘Undercapitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of less than 8.0 percent; or (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of less than 4.0 percent; or (iii) Leverage Measure: (A) Except as provided in paragraph (b)(2)(iii)(B) of this section, the bank has a leverage ratio of less than 4.0 percent; or (B) The bank has a leverage ratio of less than 3.0 percent, if the bank is rated composite 1 under the CAMELS rating system in the most recent examination of the bank and is not experiencing or anticipating significant growth. (4) ‘‘Significantly undercapitalized’’ if: PO 00000 Frm 00087 Fmt 4701 Sfmt 4702 52877 (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of less than 6.0 percent; or (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of less than 3.0 percent; or (iii) Leverage Measure: The bank has a leverage ratio of less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the bank has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. (c) Capital categories applicable on and after January 1, 2015. On January 1, 2015, and thereafter, for purposes of section 38 and this subpart, a member bank is deemed to be: (1) ‘‘Well capitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of 10.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of 8.0 percent or greater; (iii) Common Equity Tier 1 Capital Measure: The bank has a common equity tier 1 risk-based capital ratio of 6.5 percent or greater; (iv) Leverage Measure: The bank has a leverage ratio of 5.0 or greater; and (iv) The bank is not subject to any written agreement, order, capital directive, or prompt corrective action directive issued by the Board pursuant to section 8 of the FDI Act, the International Lending Supervision Act of 1983 (12 U.S.C. 3907), or section 38 of the FDI Act, or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of 8.0 percent or greater; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of 6.0 percent or greater; (iii) Common Equity Tier 1 Capital Measure: The bank has a common equity tier 1 risk-based capital ratio of 4.5 percent or greater; (iv) Leverage Measure: (A) The bank has a leverage ratio of 4.0 percent or greater; and (B) With respect to an advanced approaches bank, on January 1, 2018, and thereafter, the bank has a supplementary leverage ratio of 3.0 percent or greater; and (v) The bank does not meet the definition of a ‘‘well capitalized’’ bank. (3) ‘‘Undercapitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of less than 8.0 percent; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of less than 6.0 percent; E:\FR\FM\30AUP2.SGM 30AUP2 52878 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (iii) Common Equity Tier 1 Capital Measure: The bank has a common equity tier 1 risk-based capital ratio of less than 4.5 percent; or (iv) Leverage Measure: (A) The bank has a leverage ratio of less than 4.0 percent; or (B) With respect to an advanced approaches bank, on January 1, 2018, and thereafter, the bank has a supplementary leverage ratio of less than 3.0 percent. (4) ‘‘Significantly undercapitalized’’ if: (i) Total Risk-Based Capital Measure: The bank has a total risk-based capital ratio of less than 6.0 percent; (ii) Tier 1 Risk-Based Capital Measure: The bank has a tier 1 risk-based capital ratio of less than 4.0 percent; (iii) Common Equity Tier 1 Capital Measure: The bank has a common equity tier 1 risk-based capital ratio of less than 3.0 percent; or (iv) Leverage Measure: The bank has a leverage ratio of less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the bank has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. * * * * * Subpart G—Financial Subsidiaries of State Member Banks 33. In § 208.73, revise paragraph (a) introductory text to read as follows: (a) Capital deduction required. A state member bank that controls or holds an interest in a financial subsidiary must comply with the rules set forth in § 217.22(a)(7) of Regulation Q (12 CFR 217.22(a)(7)) in determining its compliance with applicable regulatory capital standards (including the well capitalized standard of § 208.71(a)(1)). * * * * * [Amended] 34. In § 208.77, remove and reserve paragraph (c). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Appendix A to Part 208—[Amended] 35. Amend appendix A by removing ‘‘appendix E to this part’’ and add ‘‘12 CFR part 217, subpart F’’ in its place wherever it appears; and by removing ‘‘appendix E of this part’’ and adding in its place ‘‘12 CFR part 217, subpart F’’ in its place wherever it appears. 36. Effective January 1, 2015, appendix A to part 208 is removed and reserved. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Appendix C to Part 208—Interagency Guidelines for Real Estate Lending Policies * * * * * 2 For the state member banks, the term ‘‘total capital’’ refers to that term as defined in subpart A of 12 CFR part 217. For insured state nonmember banks and state savings associations, ‘‘total capital’’ refers to that term defined in subpart A of 12 CFR part 324. For national banks and Federal savings associations, the term ‘‘total capital’’ refers to that term as defined in subpart A of 12 CFR part 3. * * * * * Appendix E to Part 208—[Removed and Reserved] 39. Appendix E to part 208 is removed and reserved. Appendix F to Part 208—[Removed and Reserved] 40. Appendix F to part 208 is removed and reserved. PART 217—CAPITAL ADEQUACY OF BANK HOLDING COMPANIES, SAVINGS AND LOAN HOLDING COMPANIES, AND STATE MEMBER BANKS (REGULATION Q) 41. The authority citation for part 217 shall read as follows: § 208.73 What additional provisions are applicable to state member banks with financial subsidiaries? § 208.77 Appendix B to Part 208—[Removed and Reserved] 37. Appendix B to part 208 is removed and reserved. 38. In Appendix C to part 208, Note 2 is revised to read as follows: Authority: 12 U.S.C. 248(a), 321–338a, 481–486, 1462a, 1467a, 1818, 1828, 1831n, 1831o, 1831p–l, 1831w, 1835, 1844(b), 1851, 3904, 3906–3909, 4808, 5365, 5371. 42. Part 217 is added as set forth at the end of the common preamble. 43. Part 217 is amended as set forth below: i. Remove ‘‘[AGENCY]’’ and add ‘‘Board’’ in its place wherever it appears. ii. Remove ‘‘[BANK]’’ and add ‘‘Board-regulated institution’’ in its place wherever it appears. iii. Remove ‘‘[PART]’’ and add ‘‘part’’ wherever it appears. 44. In § 217.1, redesignate paragraphs (c)(1) through (c)(4) as paragraphs (c)(2) through (c)(5) respectively, add new paragraph (c)(1), and revise paragraph (e) to read as follows: * * * * * § 217.1 Purpose, applicability, and reservations of authority. * * * * * (c)(1) Scope. This part applies on a consolidated basis to every Boardregulated institution that is: PO 00000 Frm 00088 Fmt 4701 Sfmt 4702 (i) A state member bank; (ii) A bank holding company domiciled in the United States that is not subject to 12 CFR part 225, Appendix C, provided that the Board may by order subject any bank holding company to this part, in whole or in part, based on the institution’s size, level of complexity, risk profile, scope of operations, or financial condition; or (iii) A savings and loan holding company domiciled in the United States. * * * * * (e) Notice and response procedures. In making a determination under this section, the Board will apply notice and response procedures in the same manner and to the same extent as the notice and response procedures in 12 CFR 263.202. 45. In § 217.2: i. Add definitions of Board, Boardregulated institution, non-guaranteed separate account, policy loan, separate account, state bank, and state member bank or member bank; ii. Add paragraphs (12) and (13) to the definition of corporate exposure, and iii. Revise the definition of gain-onsale, paragraph (2)(i) of the definition of high volatility commercial real estate (HVCRE) exposure, paragraph (4) of the definition of pre-sold construction loan, and paragraph (1) of the definition of total leverage exposure, to read as follows: * * * * * § 217.2 Definitions. * * * * * Board means the Board of Governors of the Federal Reserve System. Board-regulated institution means a state member bank, bank holding company, or savings and loan holding company. * * * * * Corporate exposure * * * (12) A policy loan; or (13) A separate account. * * * * * Gain-on-sale means an increase in the equity capital of a Board-regulated institution (as reported on Schedule RC of the Call Report, for a state member bank, or Schedule HC of the FR Y–9C, for a bank holding company or savings and loan holding company,1 as applicable) resulting from a securitization (other than an increase in equity capital resulting from the [BANK]’s receipt of cash in connection with the securitization). * * * * * 1 Savings and loan holding companies that do not file the FR Y–9C should follow the instructions to the FR Y–9C. E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules High volatility commercial real estate (HVCRE) exposure * * * (2) * * * (i) The loan-to-value ratio is less than or equal to the applicable maximum supervisory loan-to-value ratio in the Board’s real estate lending standards at 12 CFR part 208, Appendix C; * * * * * Non-guaranteed separate account means a separate account where the insurance company: (1) Does not contractually guarantee either a minimum return or account value to the contract holder; and (2) Is not required to hold reserves (in the general account) pursuant to its contractual obligations to a policyholder. * * * * * Policy loan means a loan by an insurance company to a policy holder pursuant to the provisions of an insurance contract that is secured by the cash surrender value or collateral assignment of the related policy or contract. A policy loan includes: (1) A cash loan, including a loan resulting from early payment benefits or accelerated payment benefits, on an insurance contract when the terms of contract specify that the payment is a policy loan secured by the policy; and (2) An automatic premium loan, which is a loan that is made in accordance with policy provisions which provide that delinquent premium payments are automatically paid from the cash value at the end of the established grace period for premium payments. Pre-sold construction loan means * * * (4) The purchaser has not terminated the contract; however, if the purchaser terminates the sales contract, the Board must immediately apply a 100 percent risk weight to the loan and report the revised risk weight in the next quarterly Call Report, for a state member bank, or the FR Y–9C, for a bank holding company or savings and loan holding company, as applicable, * * * * * Separate account means a legally segregated pool of assets owned and held by an insurance company and maintained separately from the insurance company’s general account assets for the benefit of an individual contract holder. To be a separate account: (1) The account must be legally recognized under applicable law; (2) The assets in the account must be insulated from general liabilities of the insurance company under applicable law in the event of the company’s insolvency; VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (3) The insurance company must invest the funds within the account as directed by the contract holder in designated investment alternatives or in accordance with specific investment objectives or policies, and (4) All investment gains and losses, net of contract fees and assessments, must be passed through to the contract holder, provided that the contract may specify conditions under which there may be a minimum guarantee but must not include contract terms that limit the maximum investment return available to the policyholder. * * * * * State bank means any bank incorporated by special law of any State, or organized under the general laws of any State, or of the United States, including a Morris Plan bank, or other incorporated banking institution engaged in a similar business. State member bank or member bank means a state bank that is a member of the Federal Reserve System. * * * * * Total leverage exposure * * * (1) The balance sheet carrying value of all of the Board-regulated institution’s on-balance sheet assets, as reported on the Call Report, for a state member bank, or the FR Y–9C, for a bank holding company or savings and loan holding company,2 as applicable, less amounts deducted from tier 1 capital under § 217.22; * * * * * 46. In § 217.10, revise paragraph (b)(4) to read as follows: § 217.10 Minimum capital requirements. * * * * * (b) * * * (4) Leverage ratio. A Board-regulated institution’s leverage ratio is the ratio of the Board-regulated institution’s tier 1 capital to its average consolidated assets as reported on the Call Report, for a state member bank, or FR Y–9C, for a bank holding company or savings and loan holding company 3, as applicable, less amounts deducted from tier 1 capital. * * * * * 47. In § 217.11, revise paragraphs (a)(2)(i) and (a)(3) as follows § 217.11 Capital conservation buffer and countercyclical capital buffer amount. * * * (a) * * * * * 2 Savings and loan holding companies that do not file the FR Y–9C should follow the instructions to the FR Y–9C. 3 Savings and loan holding companies that do not file the FR Y–9C should follow the instructions to the FR Y–9C. PO 00000 Frm 00089 Fmt 4701 Sfmt 4702 52879 (2) Definitions. * * * (i) Eligible retained income. The eligible retained income of a Boardregulated institution is the Boardregulated institution’s net income for the four calendar quarters preceding the current calendar quarter, based on the Board-regulated institution’s most recent quarterly Call Report, for a state member bank, or the FR Y–9C, for a bank holding company or savings and loan holding company, as applicable, net of any capital distributions and associated tax effects not already reflected in net income.4 * * * * * (3) Calculation of capital conservation buffer. A Board-regulated institution’s capital conservation buffer is equal to the lowest of the following ratios, calculated as of the last day of the previous calendar quarter based on the Board-regulated institution’s most recent Call Report, for a state member bank, or the FR Y–9C, for a bank holding company or savings and loan holding company,5 as applicable: * * * * * 48. In § 217.22, revise paragraph (a)(7) and add paragraph (b)(3) to read as follows: § 217.22 Regulatory capital adjustments and deductions. * * * * * (a) * * * (7) Financial subsidiaries. (i) A state member bank must deduct the aggregate amount of its outstanding equity investment, including retained earnings, in its financial subsidiaries (as defined in 12 CFR 208.77) and may not consolidate the assets and liabilities of a financial subsidiary with those of the state member bank. (ii) No other deduction is required under § 217.22(c) for investments in the capital instruments of financial subsidiaries. (b) * * * (3) Regulatory capital requirement of insurance underwriting subsidiary. A bank holding company or savings and loan holding company must deduct an amount equal to the minimum regulatory capital requirement established by the regulator of any insurance underwriting subsidiary of the holding company. For U.S.-based 4 Savings and loan holding companies that do not file FR Y–9C should follow the instructions to the FR Y–9C. Net income, as reported in the Call Report or the FR Y–9C, as applicable, reflects discretionary bonus payments and certain capital distributions that are expense items (and their associated tax effects). 5 Savings and loan holding companies that do not file FR Y–9C should follow the instructions to the FR Y–9C. E:\FR\FM\30AUP2.SGM 30AUP2 52880 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules insurance underwriting subsidiaries, this amount generally would be 200 percent of the subsidiary’s Authorized Control Level as established by the appropriate state regulator of the insurance company. The bank holding company or savings and loan holding company must take the deduction 50 percent from tier 1 capital and 50 percent from tier 2 capital. If the amount deductible from tier 2 capital exceeds the Board regulated institution’s tier 2 capital, the Board regulated institution must deduct the excess from tier 1 capital. * * * * * 49. In § 217.300, revise paragraph (c)(3) introductory text and add new paragraph (e) to read as follows: § 217.300 Transitions. * * * * * (3) Transition adjustments to AOCI. From January 1, 2013 through December 31, 2017, a Board-regulated institution must adjust common equity tier 1 capital with respect to the aggregate amount of unrealized gains on AFS equity securities, plus net unrealized gains or losses on AFS debt securities, plus accumulated net unrealized gains and losses on defined benefit pension obligations, plus accumulated net unrealized gains or losses on cash flow hedges related to items that are reported on the balance sheet at fair value included in AOCI (the transition AOCI adjustment amount) as reported on the Board-regulated institution’s most recent Call Report, for a state member bank, or the FR Y–9C, for a bank holding company or savings and loan holding company,6 as applicable, as follows: * * * * * (e) Until July 21, 2015, this part will not apply to any bank holding company subsidiary of a foreign banking organization that is currently relying on Supervision and Regulation Letter SR 01–01 issued by the Board (as in effect on May 19, 2010). mstockstill on DSK4VPTVN1PROD with PROPOSALS2 PART 225—BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL (REGULATION Y) 42. The authority citation for part 225 continues to read as follows: Authority: 12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p–1, 1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331–3351, 3907, and 3909; 15 U.S.C. 1681s, 1681w, 6801 and 6805. 6 Savings and loan holding companies that do not file FR Y–9C should follow the instructions to the FR Y–9C. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 Subpart A—General Provisions 50. In § 225.1, on January 1, 2015, remove and reserve paragraphs (c)(12), (c)(13) and (c)(15) to read as follows: § 225.1 Authority, purpose, and scope. * * * * * (c) Scope * * * (12) [Reserved] * * * * * (14) [Reserved] (15) [Reserved] * * * * * 51. In § 225.2, revise paragraphs (r)(1)(i) and (ii) to read as follows: § 225.2 Definitions. * * * * * (r) * * * (1) * * * (i) On a consolidated basis, the bank holding company maintains a total riskbased capital ratio of 10.0 percent or greater, as defined in 12 CFR 217.10; (ii) On a consolidated basis, the bank holding company maintains a tier 1 riskbased capital ratio of 6.0 percent or greater, as defined in 12 CFR 217.10; and * * * * * 52. In § 225.4, revise paragraph (b)(4)(ii) to read as follows: § 225.4 Corporate practices. * * * * * (b) * * * (4) * * * (ii) In determining whether a proposal constitutes an unsafe or unsound practice, the Board shall consider whether the bank holding company’s financial condition, after giving effect to the proposed purchase or redemption, meets the financial standards applied by the Board under section 3 of the BHC Act, including 12 CFR part 217 and the Board’s Policy Statement for Small Bank Holding Companies (appendix C of this part). * * * * * 53. In § 225.8, revise paragraphs (c)(5) and (c)(7) through (c)(10) to read as follows: § 225.8 Capital planning. * * * * * (c) * * * (5) Minimum regulatory capital ratio means any minimum regulatory capital ratio that the Federal Reserve may require of a bank holding company, by regulation or order, including any minimum capital ratio required under 12 CFR 217.10(a). * * * * * (7) Tier 1 capital has the same meaning as under 12 CFR 217.2. (8) Tier 1 common capital means tier 1 capital less the non-common elements PO 00000 of tier 1 capital, including perpetual preferred stock and related surplus, minority interest in subsidiaries, trust preferred securities and mandatory convertible preferred securities. (9) Tier 1 common ratio means the ratio of a bank holding company’s tier 1 common capital to total risk-weighted assets. This definition will remain in effect until the Board adopts an alternative tier 1 common ratio definition as a minimum regulatory capital ratio. (10) Total risk-weighted assets has the same meaning as under 12 CFR 217.2. * * * * * Frm 00090 Fmt 4701 Sfmt 4702 Subpart B—Acquisition of Bank Securities or Assets 54. In § 225.12, revise paragraph (d)(2)(iv) to read as follows: § 225.12 Transactions not requiring Board approval. * * * * * (d) * * * (2) * * * (iv) Both before and after the transaction, the acquiring bank holding company meets the requirements of 12 CFR part 217; * * * * * Subpart C—Nonbanking Activities and Acquisitions by Bank Holding Companies 55. In § 225.22, revise paragraph (d)(8)(v) to read as follows: § 225.22 Exempt nonbanking activities and acquisitions. * * * * * (d) * * * (8) * * * (v) The acquiring company, after giving effect to the transaction, meets the requirements of 12 CFR part 217, and the Board has not previously notified the acquiring company that it may not acquire assets under the exemption in this paragraph (d). * * * * * Subpart J—Merchant Banking Investments 56. In § 225.172, revise paragraph (b)(6)(i)(A) to read as follows: § 225.22 What are the holding periods permitted for merchant banking investments? * * * * * (b) * * * (6) * * * (i) * * * (A) Higher than the maximum marginal tier 1 capital charge applicable under part 217 to merchant banking E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules investments held by that financial holding company; and * * * * * Appendix A to Part 225—Capital Adequacy Guidelines for Bank Holding Companies: Risk-Based Measure 57. Amend appendix A to remove ‘‘appendix E of this part’’ and add ‘‘12 CFR part 217, subpart F’’ in its place wherever it appears. 58. On January 1, 2015, appendix A to part 225 is removed and reserved. Appendix B to Part 225—Capital Adequacy Guidelines for Bank Holding Companies and State Member Banks: Leverage Measure 59. Appendix B to part 225 is removed and reserved. Appendix D to Part 225—Capital Adequacy Guidelines for Bank Holding Companies: Tier 1 Leverage Measure 60. Appendix D to part 225 is removed and reserved. Appendix E to Part 225—Capital Adequacy Guidelines for Bank Holding Companies: Market Risk Measure 61. Appendix E to part 225 is removed and reserved. Appendix G to Part 225—Capital Adequacy Guidelines for Bank Holding Companies: Internal-Ratings-Based and Advanced Measurement Approaches 62. Appendix G to part 225 is removed and reserved. FEDERAL DEPOSIT INSURANCE CORPORATION 12 CFR Chapter III Authority and Issuance For the reasons set forth in the common preamble, the Federal Deposit Insurance Corporation amends chapter III of title 12 of the Code of Federal Regulations as follows: PART 324—CAPITAL ADEQUACY mstockstill on DSK4VPTVN1PROD with PROPOSALS2 63. The authority citation for part 324 is added to read as follows: Authority: 12 U.S.C. 1815(a), 1815(b), 1816, 1818(a), 1818(b), 1818(c), 1818(t), 1819 (Tenth), 1828(c), 1828(d), 1828(i), 1828(n), 1828(o), 1831o, 1835, 3907, 3909, 4808; 5371; 5412; Pub. L. 102–233, 105 Stat. 1761, 1789, 1790 (12 U.S.C. 1831n note); Pub. L. 102– 242, 105 Stat. 2236, 2355, as amended by Pub. L. 103–325, 108 Stat. 2160, 2233 (12 U.S.C. 1828 note); Pub. L. 102–242, 105 Stat. 2236, 2386, as amended by Pub. L. 102–550, 106 Stat. 3672, 4089 (12 U.S.C. 1828 note); Pub. L. 111–203, 124 Stat. 1376, 1887 (15 U.S.C. 78o–7 note). 64. Subparts A, B, C, and G of part 324 are added as set forth at the end of the common preamble. VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 65. Subparts A, B, C, and G of part 324 are amended as set forth below: a. Remove ‘‘[AGENCY]’’ and add ‘‘FDIC’’ in its place, wherever it appears; b. Remove ‘‘[BANK]’’ and add ‘‘bank and state savings association’’ in its place, wherever it appears in the phrase ‘‘Each [BANK]’’ or ‘‘each [BANK]’’; c. Remove ‘‘[BANK]’’ and add ‘‘bank or state savings association’’ in its place, wherever it appears in the phrases ‘‘A [BANK]’’, ‘‘a [BANK]’’, ‘‘The [BANK]’’, or ‘‘the [BANK]’’; d. Remove ‘‘[BANKS]’’ and add ‘‘banks and state savings associations’’ in its place, wherever it appears; e. Remove ‘‘[PART]’’ and add ‘‘Part 324’’ in its place, wherever it appears; f. Remove ‘‘[AGENCY]’’ and add ‘‘FDIC’’ in its place, wherever it appears; and g. Remove ‘‘[REGULATORY REPORT]’’ and add ‘‘Call Report’’ in its place, wherever it appears. 66. New § 324.2 is amended by adding the following definitions in alphabetical order: § 324.2 Definitions. * * * * * Bank means an FDIC-insured, statechartered commercial or savings bank that is not a member of the Federal Reserve System and for which the FDIC is the appropriate federal banking agency pursuant to section 3(q) of the Federal Deposit Insurance Act (12 U.S.C. 1813(q)). * * * * * Core capital means Tier 1 capital, as defined in § 324.2 of subpart A of this part. * * * * * State savings association means a State savings association as defined in section 3(b)(3) of the Federal Deposit Insurance Act (12 U.S.C. 1813(b)(3)), the deposits of which are insured by the Corporation. It includes a building and loan, savings and loan, or homestead association, or a cooperative bank (other than a cooperative bank which is a State bank as defined in section 3(a)(2) of the Federal Deposit Insurance Act) organized and operating according to the laws of the State in which it is chartered or organized, or a corporation (other than a bank as defined in section 3(a)(1) of the Federal Deposit Insurance Act) that the Board of Directors of the Federal Deposit Insurance Corporation determine to be operating substantially in the same manner as a State savings association. * * * * * Tangible capital means the amount of core capital (Tier 1 capital), as defined in accordance with § 324.2 of subpart A PO 00000 Frm 00091 Fmt 4701 Sfmt 4702 52881 of this part, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. Tangible equity means the amount of Tier 1 capital, as calculated in accordance with § 324.2 of subpart A of this chapter, plus the amount of outstanding perpetual preferred stock (including related surplus) not included in Tier 1 capital. * * * * * 67. New § 324.10 is amended by adding paragraphs (a)(6), (b)(5), and (c)(5) to read as follows: § 324.10 Minimum capital requirements. (a) * * * (6) For state savings associations, a tangible capital ratio of 1.5 percent. (b) * * * (5) State savings association tangible capital ratio. A state savings association’s tangible capital ratio is the ratio of the state savings association’s core capital (Tier 1 capital) to total adjusted assets as calculated under § 390.461. (c) * * * (5) State savings association tangible capital ratio. A state savings association’s tangible capital ratio is the ratio of the state savings association’s core capital (Tier 1 capital) to total adjusted assets as calculated under § 390.461. * * * * * 68. New § 324.22 is amended to add new paragraph (a)(8), to read as follows: § 324.22 Regulatory capital adjustments and deductions. (a) * * * (8) (i) A state savings association must deduct the aggregate amount of its outstanding investments, (both equity and debt) as well as retained earnings in subsidiaries that are not includable subsidiaries as defined in paragraph 7(iv) of this section (including those subsidiaries where the state savings association has a minority ownership interest) and may not consolidate the assets and liabilities of the subsidiary with those of the state savings association. Any such deductions shall be deducted from common equity tier 1 capital, except as provided in paragraphs (a)(7)(ii) and (a)(7)(iii) of this section. (ii) If a state savings association has any investments (both debt and equity) in one or more subsidiaries engaged in any activity that would not fall within the scope of activities in which includable subsidiaries as defined in paragraph 7(iv) of this section may engage, it must deduct such investments from assets and common equity tier 1 E:\FR\FM\30AUP2.SGM 30AUP2 mstockstill on DSK4VPTVN1PROD with PROPOSALS2 52882 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules capital in accordance with paragraph (c)(7)(i) of this section. The state savings association must first deduct from assets and common equity tier 1 capital the amount by which any investments in such subsidiary(ies) exceed the amount of such investments held by the state savings association as of April 12, 1989. Next the state savings association must deduct from assets and common equity tier 1 the state savings association’s investments in and extensions of credit to the subsidiary on the date as of which the state savings association’s capital is being determined. (iii) If a state savings association holds a subsidiary (either directly or through a subsidiary) that is itself a [insured] domestic depository institution, the FDIC may, in its sole discretion upon determining that the amount of common equity tier 1 capital that would be required would be higher if the assets and liabilities of such subsidiary were consolidated with those of the parent state savings association than the amount that would be required if the parent state savings association’s investment were deducted pursuant to paragraphs (c)(6)(i) and (c)(6)(ii) of this section, consolidate the assets and liabilities of that subsidiary with those of the parent state savings association in calculating the capital adequacy of the parent state savings association, regardless of whether the subsidiary would otherwise be an includable subsidiary as defined in paragraph (c)(7)(iv) of this section. (iv) For purposes of this section, the term includable subsidiary means a subsidiary of a state savings association that is: (A) Engaged solely in activities that are permissible for a national bank; (B) Engaged in activities not permissible for a national bank, but only if acting solely as agent for its customers and such agency position is clearly documented in the state savings association’s files; (C) Engaged solely in mortgagebanking activities; (D)(1) Itself an insured depository institution or a company the sole investment of which is an insured depository institution, and (2) Was acquired by the parent state savings association prior to May 1, 1989; or (E) A subsidiary of any state savings association existing as a state savings association on August 9, 1989 that — (1) Was chartered prior to October 15, 1982, as a savings bank or a cooperative bank under state law, or (2) Acquired its principal assets from an association that was chartered prior VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 to October 15, 1982, as a savings bank or a cooperative bank under state law. * * * * * 69. Subpart H is added to part 324 to read as follows: Subpart H—Prompt Corrective Action Sec. 324.301 Authority, purpose, scope, other supervisory authority, and disclosure of capital categories. 324.302 Notice of capital category. 324.303 Capital measures and capital category definitions. 324.304 Capital restoration plans. 324.305 Mandatory and discretionary supervisory actions. Subpart H—Prompt Corrective Action § 324.301 Authority, purpose, scope, other supervisory authority, and disclosure of capital categories. (a) Authority. This subpart is issued by the FDIC pursuant to section 38 of the Federal Deposit Insurance Act (FDI Act), as added by section 131 of the Federal Deposit Insurance Corporation Improvement Act of 1991 (Pub. L. 102– 242, 105 Stat. 2236 (1991)) (12 U.S.C. 1831o). (b) Purpose. Section 38 of the FDI Act establishes a framework of supervisory actions for insured depository institutions that are not adequately capitalized. The principal purpose of this subpart is to define, for FDICinsured state-chartered nonmember banks and state-chartered savings associations, the capital measures and capital levels, and for insured branches of foreign banks, comparable asset-based measures and levels, that are used for determining the supervisory actions authorized under section 38 of the FDI Act. This subpart also establishes procedures for submission and review of capital restoration plans and for issuance and review of directives and orders pursuant to section 38 of the FDI Act. (c) Scope. Until January 1, 2015, subpart B of part 325 of this chapter will continue to apply to FDIC-insured statechartered nonmember banks and insured branches of foreign banks for which the FDIC is the appropriate Federal banking agency. Until January 1, 2015, subpart Y of part 390 of this chapter will continue to apply to state savings associations. As of January 1, 2015, this subpart implements the provisions of section 38 of the FDI Act as they apply to FDIC-insured statechartered nonmember banks, state savings associations, and insured branches of foreign banks for which the FDIC is the appropriate Federal banking agency. Certain of these provisions also apply to officers, directors and PO 00000 Frm 00092 Fmt 4701 Sfmt 4702 employees of those insured institutions. In addition, certain provisions of this subpart apply to all insured depository institutions that are deemed critically undercapitalized. (d) Other supervisory authority. Neither section 38 of the FDI Act nor this subpart in any way limits the authority of the FDIC under any other provision of law to take supervisory actions to address unsafe or unsound practices, deficient capital levels, violations of law, unsafe or unsound conditions, or other practices. Action under section 38 of the FDI Act and this subpart may be taken independently of, in conjunction with, or in addition to any other enforcement action available to the FDIC, including issuance of cease and desist orders, capital directives, approval or denial of applications or notices, assessment of civil money penalties, or any other actions authorized by law. (e) Disclosure of capital categories. The assignment of a bank, a state savings association, or an insured branch under this subpart within a particular capital category is for purposes of implementing and applying the provisions of section 38 of the FDI Act. Unless permitted by the FDIC or otherwise required by law, no bank or state savings association may state in any advertisement or promotional material its capital category under this subpart or that the FDIC or any other federal banking agency has assigned the bank or state savings association to a particular capital category. § 324.302 Notice of capital category. (a) Effective date of determination of capital category. A bank or state savings association shall be deemed to be within a given capital category for purposes of section 38 of the FDI Act and this subpart as of the date the bank or state savings association is notified of, or is deemed to have notice of, its capital category, pursuant to paragraph (b) of this section. (b) Notice of capital category. A bank or state savings association shall be deemed to have been notified of its capital levels and its capital category as of the most recent date: (1) A Consolidated Report of Condition and Income or Thrift Financial Report (Call Report) is required to be filed with the FDIC; (2) A final report of examination is delivered to the bank or state savings association; or (3) Written notice is provided by the FDIC to the bank or state savings association of its capital category for purposes of section 38 of the FDI Act and this subpart or that the bank’s or E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules state savings association’s capital category has changed as provided in § 324.303(d). (c) Adjustments to reported capital levels and capital category—(1) Notice of adjustment by bank or state savings association. A bank or state savings association shall provide the appropriate FDIC regional director with written notice that an adjustment to the bank’s or state savings association’s capital category may have occurred no later than 15 calendar days following the date that any material event has occurred that would cause the bank or state savings association to be placed in a lower capital category from the category assigned to the bank or state savings association for purposes of section 38 of the FDI Act and this subpart on the basis of the bank’s or state savings association’s most recent Call Report or report of examination. (2) Determination by the FDIC to change capital category. After receiving notice pursuant to paragraph (c)(1) of this section, the FDIC shall determine whether to change the capital category of the bank or state savings association and shall notify the bank or state savings association of the FDIC’s determination. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 324.303 Capital measures and capital category definitions. (a) Capital measures. For purposes of section 38 of the FDI Act and this subpart, the relevant capital measures shall be: (1) The total risk-based capital ratio; (2) The Tier 1 risk-based capital ratio; and (3) The common equity tier 1 ratio; (4) The leverage ratio; (5) The tangible equity to total assets ratio; and (6) Beginning on January 1, 2018, the supplementary leverage ratio calculated in accordance with § 324.11 of subpart B of this part for banks or state savings associations that are subject to subpart E of part 324. (b) Capital categories. For purposes of section 38 of the FDI Act and this subpart, a bank or state savings association shall be deemed to be: (1) ‘‘Well capitalized’’ if the bank or state savings association: (i) Has a total risk-based capital ratio of 10.0 percent or greater; and (ii) Has a Tier 1 risk-based capital ratio of 8.0 percent or greater; and (iii) Has a common equity tier 1 capital ratio of 6.5 percent or greater; and (iv) Has a leverage ratio of 5.0 percent or greater; and (v) Is not subject to any written agreement, order, capital directive, or VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 prompt corrective action directive issued by the FDIC pursuant to section 8 of the FDI Act (12 U.S.C. 1818), the International Lending Supervision Act of 1983 (12 U.S.C. 3907), or the Home Owners’ Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)), or section 38 of the FDI Act (12 U.S.C. 1831o), or any regulation thereunder, to meet and maintain a specific capital level for any capital measure. (2) ‘‘Adequately capitalized’’ if the bank or state savings association: (i) Has a total risk-based capital ratio of 8.0 percent or greater; and (ii) Has a Tier 1 risk-based capital ratio of 6.0 percent or greater; and (iii) Has a common equity tier 1 capital ratio of 4.5 percent or greater; and (iv) Has a leverage ratio of 4.0 percent or greater; and (v) Does not meet the definition of a well capitalized bank. (vi) Beginning January 1, 2018, an advanced approaches bank or state savings association will be deemed to be ‘‘adequately capitalized’’ if the bank or state savings association satisfies paragraphs (b)(2)(i) through (v) of this section and has a supplementary leverage ratio of 3.0 percent or greater, as calculated in accordance with § 324.11 of subpart B of this part. (3) ‘‘Undercapitalized’’ if the bank or state savings association: (i) Has a total risk-based capital ratio that is less than 8.0 percent; or (ii) Has a Tier 1 risk-based capital ratio that is less than 6.0 percent; or (iii) Has a common equity tier 1 capital ratio that is less than 4.5 percent; or (iv) Has a leverage ratio that is less than 4.0 percent. (v) Beginning January 1, 2018, an advanced approaches bank or state savings association will be deemed to be ‘‘undercapitalized’’ if the bank or state savings association has a supplementary leverage ratio of less than 3.0 percent, as calculated in accordance with § 324.11 of subpart B of this part. (4) ‘‘Significantly undercapitalized’’ if the bank or state savings association has: (i) A total risk-based capital ratio that is less than 6.0 percent; or (ii) A Tier 1 risk-based capital ratio that is less than 4.0 percent; or (iii) A common equity tier 1 capital ratio that is less than 3.0 percent; or (iv) A leverage ratio that is less than 3.0 percent. (5) ‘‘Critically undercapitalized’’ if the insured depository institution has a ratio of tangible equity to total assets that is equal to or less than 2.0 percent. (c) Capital categories for insured branches of foreign banks. For purposes PO 00000 Frm 00093 Fmt 4701 Sfmt 4702 52883 of the provisions of section 38 of the FDI Act and this subpart, an insured branch of a foreign bank shall be deemed to be: (1) ‘‘Well capitalized’’ if the insured branch: (i) Maintains the pledge of assets required under § 347.209 of this chapter; and (ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 108 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Has not received written notification from: (A) The OCC to increase its capital equivalency deposit pursuant to 12 CFR 28.15(b), or to comply with asset maintenance requirements pursuant to 12 CFR 28.20; or (B) The FDIC to pledge additional assets pursuant to § 347.209 of this chapter or to maintain a higher ratio of eligible assets pursuant to § 347.210 of this chapter. (2) ‘‘Adequately capitalized’’ if the insured branch: (i) Maintains the pledge of assets required under § 347.209 of this chapter; and (ii) Maintains the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities; and (iii) Does not meet the definition of a well capitalized insured branch. (3) ‘‘Undercapitalized’’ if the insured branch: (i) Fails to maintain the pledge of assets required under § 347.209 of this chapter; or (ii) Fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 106 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (4) ‘‘Significantly undercapitalized’’ if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 104 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (5) ‘‘Critically undercapitalized’’ if it fails to maintain the eligible assets prescribed under § 347.210 of this chapter at 102 percent or more of the preceding quarter’s average book value of the insured branch’s third-party liabilities. (d) Reclassifications based on supervisory criteria other than capital. The FDIC may reclassify a well capitalized bank or state savings association as adequately capitalized E:\FR\FM\30AUP2.SGM 30AUP2 52884 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules and may require an adequately capitalized bank or state savings association or an undercapitalized bank or state savings association to comply with certain mandatory or discretionary supervisory actions as if the bank or state savings association were in the next lower capital category (except that the FDIC may not reclassify a significantly undercapitalized bank or state savings association as critically undercapitalized) (each of these actions are hereinafter referred to generally as ‘‘reclassifications’’) in the following circumstances: (1) Unsafe or unsound condition. The FDIC has determined, after notice and opportunity for hearing pursuant to § 308.202(a) of this chapter, that the bank or state savings association is in unsafe or unsound condition; or (2) Unsafe or unsound practice. The FDIC has determined, after notice and opportunity for hearing pursuant to § 308.202(a) of this chapter, that, in the most recent examination of the bank or state savings association, the bank or state savings association received and has not corrected a less-than-satisfactory rating for any of the categories of asset quality, management, earnings, or liquidity. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 324.304 Capital restoration plans. (a) Schedule for filing plan—(1) In general. A bank or state savings association shall file a written capital restoration plan with the appropriate FDIC regional director within 45 days of the date that the bank or state savings association receives notice or is deemed to have notice that the bank or state savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized, unless the FDIC notifies the bank or state savings association in writing that the plan is to be filed within a different period. An adequately capitalized bank or state savings association that has been required pursuant to § 324.303(d) of this subpart to comply with supervisory actions as if the bank or state savings association were undercapitalized is not required to submit a capital restoration plan solely by virtue of the reclassification. (2) Additional capital restoration plans. Notwithstanding paragraph (a)(1) of this section, a bank or state savings association that has already submitted and is operating under a capital restoration plan approved under section 38 and this subpart is not required to submit an additional capital restoration plan based on a revised calculation of its capital measures or a reclassification of the institution under § 324.303 unless the FDIC notifies the bank or state VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 savings association that it must submit a new or revised capital plan. A bank or state savings association that is notified that it must submit a new or revised capital restoration plan shall file the plan in writing with the appropriate FDIC regional director within 45 days of receiving such notice, unless the FDIC notifies the bank or state savings association in writing that the plan must be filed within a different period. (b) Contents of plan. All financial data submitted in connection with a capital restoration plan shall be prepared in accordance with the instructions provided on the Call Report, unless the FDIC instructs otherwise. The capital restoration plan shall include all of the information required to be filed under section 38(e)(2) of the FDI Act. A bank or state savings association that is required to submit a capital restoration plan as a result of a reclassification of the bank or state savings association pursuant to § 324.303(d) of this subpart shall include a description of the steps the bank or state savings association will take to correct the unsafe or unsound condition or practice. No plan shall be accepted unless it includes any performance guarantee described in section 38(e)(2)(C) of the FDI Act by each company that controls the bank or state savings association. (c) Review of capital restoration plans. Within 60 days after receiving a capital restoration plan under this subpart, the FDIC shall provide written notice to the bank or state savings association of whether the plan has been approved. The FDIC may extend the time within which notice regarding approval of a plan shall be provided. (d) Disapproval of capital plan. If a capital restoration plan is not approved by the FDIC, the bank or state savings association shall submit a revised capital restoration plan within the time specified by the FDIC. Upon receiving notice that its capital restoration plan has not been approved, any undercapitalized bank or state savings association (as defined in § 324.303(b) of this subpart) shall be subject to all of the provisions of section 38 of the FDI Act and this subpart applicable to significantly undercapitalized institutions. These provisions shall be applicable until such time as a new or revised capital restoration plan submitted by the bank has been approved by the FDIC. (e) Failure to submit capital restoration plan. A bank or state savings association that is undercapitalized (as defined in § 324.303(b) of this subpart) and that fails to submit a written capital restoration plan within the period provided in this section shall, upon the PO 00000 Frm 00094 Fmt 4701 Sfmt 4702 expiration of that period, be subject to all of the provisions of section 38 and this subpart applicable to significantly undercapitalized institutions. (f) Failure to implement capital restoration plan. Any undercapitalized bank or state savings association that fails in any material respect to implement a capital restoration plan shall be subject to all of the provisions of section 38 of the FDI Act and this subpart applicable to significantly undercapitalized institutions. (g) Amendment of capital restoration plan. A bank or state savings association that has filed an approved capital restoration plan may, after prior written notice to and approval by the FDIC, amend the plan to reflect a change in circumstance. Until such time as a proposed amendment has been approved, the bank or state savings association shall implement the capital restoration plan as approved prior to the proposed amendment. (h) Performance guarantee by companies that control a bank or state savings association—(1) Limitation on liability—(i) Amount limitation. The aggregate liability under the guarantee provided under section 38 and this subpart for all companies that control a specific bank or state savings association that is required to submit a capital restoration plan under this subpart shall be limited to the lesser of: (A) An amount equal to 5.0 percent of the bank or state savings association’s total assets at the time the bank or state savings association was notified or deemed to have notice that the bank or state savings association was undercapitalized; or (B) The amount necessary to restore the relevant capital measures of the bank or state savings association to the levels required for the bank or state savings association to be classified as adequately capitalized, as those capital measures and levels are defined at the time that the bank or state savings association initially fails to comply with a capital restoration plan under this subpart. (ii) Limit on duration. The guarantee and limit of liability under section 38 of the FDI Act and this subpart shall expire after the FDIC notifies the bank or state savings association that it has remained adequately capitalized for each of four consecutive calendar quarters. The expiration or fulfillment by a company of a guarantee of a capital restoration plan shall not limit the liability of the company under any guarantee required or provided in connection with any capital restoration plan filed by the same bank or state savings association after expiration of the first guarantee. E:\FR\FM\30AUP2.SGM 30AUP2 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules (iii) Collection on guarantee. Each company that controls a given bank or state savings association shall be jointly and severally liable for the guarantee for such bank or state savings association as required under section 38 and this subpart, and the FDIC may require and collect payment of the full amount of that guarantee from any or all of the companies issuing the guarantee. (2) Failure to provide guarantee. In the event that a bank or state savings association that is controlled by any company submits a capital restoration plan that does not contain the guarantee required under section 38(e)(2) of the FDI Act, the bank or state savings association shall, upon submission of the plan, be subject to the provisions of section 38 and this subpart that are applicable to banks and state savings associations that have not submitted an acceptable capital restoration plan. (3) Failure to perform guarantee. Failure by any company that controls a bank or state savings association to perform fully its guarantee of any capital plan shall constitute a material failure to implement the plan for purposes of section 38(f) of the FDI Act. Upon such failure, the bank or state savings association shall be subject to the provisions of section 38 and this subpart that are applicable to banks and state savings associations that have failed in a material respect to implement a capital restoration plan. mstockstill on DSK4VPTVN1PROD with PROPOSALS2 § 324.305 Mandatory and discretionary supervisory actions. (a) Mandatory supervisory actions— (1) Provisions applicable to all banks and state savings associations. All banks and state savings associations are subject to the restrictions contained in section 38(d) of the FDI Act on payment of capital distributions and management fees. (2) Provisions applicable to undercapitalized, significantly undercapitalized, and critically undercapitalized banks and state savings associations. Immediately upon receiving notice or being deemed to have notice, as provided in § 324.302 of this subpart, that the bank or state savings association is undercapitalized, significantly undercapitalized, or critically undercapitalized, the bank or state savings association shall become subject to the provisions of section 38 of the FDI Act: (i) Restricting payment of capital distributions and management fees (section 38(d) of the FDI Act); (ii) Requiring that the FDIC monitor the condition of the bank or state savings association (section 38(e)(1) of the FDI Act); VerDate Mar<15>2010 18:36 Aug 29, 2012 Jkt 226001 (iii) Requiring submission of a capital restoration plan within the schedule established in this subpart (section 38(e)(2) of the FDI Act); (iv) Restricting the growth of the bank or state savings association’s assets (section 38(e)(3) of the FDI Act); and (v) Requiring prior approval of certain expansion proposals (section 38(e)(4) of the FDI Act). (3) Additional provisions applicable to significantly undercapitalized, and critically undercapitalized banks and state savings associations. In addition to the provisions of section 38 of the FDI Act described in paragraph (a)(2) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 324.302 of this subpart, that the bank or state savings association is significantly undercapitalized, or critically undercapitalized, or that the bank or state savings association is subject to the provisions applicable to institutions that are significantly undercapitalized because the bank or state savings association failed to submit or implement in any material respect an acceptable capital restoration plan, the bank or state savings association shall become subject to the provisions of section 38 of the FDI Act that restrict compensation paid to senior executive officers of the institution (section 38(f)(4) of the FDI Act). (4) Additional provisions applicable to critically undercapitalized institutions. (i) In addition to the provisions of section 38 of the FDI Act described in paragraphs (a)(2) and (a)(3) of this section, immediately upon receiving notice or being deemed to have notice, as provided in § 324.302 of this subpart, that the insured depository institution is critically undercapitalized, the institution is prohibited from doing any of the following without the FDIC’s prior written approval: (A) Entering into any material transaction other than in the usual course of business, including any investment, expansion, acquisition, sale of assets, or other similar action with respect to which the depository institution is required to provide notice to the appropriate Federal banking agency; (B) Extending credit for any highly leveraged transaction; (C) Amending the institution’s charter or bylaws, except to the extent necessary to carry out any other requirement of any law, regulation, or order; (D) Making any material change in accounting methods; (E) Engaging in any covered transaction (as defined in section 23A(b) PO 00000 Frm 00095 Fmt 4701 Sfmt 4702 52885 of the Federal Reserve Act (12 U.S.C. 371c(b))); (F) Paying excessive compensation or bonuses; (G) Paying interest on new or renewed liabilities at a rate that would increase the institution’s weighted average cost of funds to a level significantly exceeding the prevailing rates of interest on insured deposits in the institution’s normal market areas; and (H) Making any principal or interest payment on subordinated debt beginning 60 days after becoming critically undercapitalized except that this restriction shall not apply, until July 15, 1996, with respect to any subordinated debt outstanding on July 15, 1991, and not extended or otherwise renegotiated after July 15, 1991. (ii) In addition, the FDIC may further restrict the activities of any critically undercapitalized institution to carry out the purposes of section 38 of the FDI Act. (5) Exception for certain savings associations. The restrictions in paragraph (a)(4) of this section shall not apply, before July 1, 1994, to any insured savings association if: (i) The savings association had submitted a plan meeting the requirements of section 5(t)(6)(A)(ii) of the Home Owners’ Loan Act (12 U.S.C. 1464(t)(6)(A)(ii)) prior to December 19, 1991; (ii) The Director of Office of Thrift Supervision (OTS) had accepted the plan prior to December 19, 1991; and (iii) The savings association remains in compliance with the plan or is operating under a written agreement with the appropriate federal banking agency. (b) Discretionary supervisory actions. In taking any action under section 38 of the FDI Act that is within the FDIC’s discretion to take in connection with: (1) An insured depository institution that is deemed to be undercapitalized, significantly undercapitalized, or critically undercapitalized, or has been reclassified as undercapitalized, or significantly undercapitalized; or (2) An officer or director of such institution, the FDIC shall follow the procedures for issuing directives under §§ 308.201 and 308.203 of this chapter, unless otherwise provided in section 38 of the FDI Act or this subpart. PART 362—ACTIVITIES OF INSURED STATE BANKS AND INSURED SAVINGS ASSOCIATIONS 70. The authority citation for part 362 continues to read as follows: Authority: 12 U.S.C. 1816, 1818, 1819(a)(Tenth), 1828(j), 1828(m), 1828a, 1831a, 1831e, 1831w, 1843(l). E:\FR\FM\30AUP2.SGM 30AUP2 52886 Federal Register / Vol. 77, No. 169 / Thursday, August 30, 2012 / Proposed Rules 71. Revise § 362.18(a)(3) to read as follows: § 362.18 Financial subsidiaries of insured state nonmember banks mstockstill on DSK4VPTVN1PROD with PROPOSALS2 (a) * * * (3) The insured state nonmember bank will deduct the aggregate amount of its outstanding equity investment, including retained earnings, in all financial subsidiaries that engage in activities as principal pursuant to VerDate Mar<15>2010 19:45 Aug 29, 2012 Jkt 226001 section 46(a) of the Federal Deposit Act (12 U.S.C. 1831w(a)), from the bank’s total assets and tangible equity and deduct such investment from common equity tier 1 capital in accordance with 12 CFR part 324, subpart C. * * * * * Dated: June 11, 2012 Thomas J. Curry, Comptroller of the Currency. By order of the Board of Directors. PO 00000 Frm 00096 Fmt 4701 Sfmt 9990 Dated at Washington, DC, this 12th day of June, 2012. Robert E. Feldman, Executive Secretary. Federal Deposit Insurance Corporation. By order of the Board of Governors of the Federal Reserve System, July 3, 2012. Jennifer J. Johnson Secretary of the Board. [FR Doc. 2012–16757 Filed 8–10–12; 8:45 am] BILLING CODE –P E:\FR\FM\30AUP2.SGM 30AUP2

Agencies

[Federal Register Volume 77, Number 169 (Thursday, August 30, 2012)]
[Proposed Rules]
[Pages 52791-52886]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-16757]



[[Page 52791]]

Vol. 77

Thursday,

No. 169

August 30, 2012

Part II





Department of the Treasury





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Office of the Comptroller of the Currency





12 CFR Parts 3, 5, 6, et al.





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Federal Reserve System

12 CFR Parts 208, 217, and 225





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Federal Deposit Insurance Corporation

12 CFR Parts 324, 325, and 362





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Regulatory Capital Rules: Regulatory Capital, Implementation of Basel 
III, Minimum Regulatory Capital Ratios, Capital Adequacy, Transition 
Provisions, and Prompt Corrective Action; Proposed Rule

Federal Register / Vol. 77 , No. 169 / Thursday, August 30, 2012 / 
Proposed Rules

[[Page 52792]]


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 DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Parts 3, 5, 6, 165, and 167

[Docket ID OCC-2012-0008]
RIN 1557-AD46

FEDERAL RESERVE SYSTEM

12 CFR Parts 208, 217, and 225 Regulations H, Q, and Y

[Docket No. R-1442]
RIN 7100-AD87

FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Parts 324, 325, and 362

RIN 3064-AD95


Regulatory Capital Rules: Regulatory Capital, Implementation of 
Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, 
Transition Provisions, and Prompt Corrective Action

AGENCIES: Office of the Comptroller of the Currency, Treasury; the 
Board of Governors of the Federal Reserve System; and the Federal 
Deposit Insurance Corporation.

ACTION: Joint notice of proposed rulemaking.

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SUMMARY: The Office of the Comptroller of the Currency (OCC), Board of 
Governors of the Federal Reserve System (Board), and the Federal 
Deposit Insurance Corporation (FDIC) (collectively, the agencies) are 
seeking comment on three Notices of Proposed Rulemaking (NPR) that 
would revise and replace the agencies' current capital rules. In this 
NPR, the agencies are proposing to revise their risk-based and leverage 
capital requirements consistent with agreements reached by the Basel 
Committee on Banking Supervision (BCBS) in ``Basel III: A Global 
Regulatory Framework for More Resilient Banks and Banking Systems'' 
(Basel III). The proposed revisions would include implementation of a 
new common equity tier 1 minimum capital requirement, a higher minimum 
tier 1 capital requirement, and, for banking organizations subject to 
the advanced approaches capital rules, a supplementary leverage ratio 
that incorporates a broader set of exposures in the denominator 
measure. Additionally, consistent with Basel III, the agencies are 
proposing to apply limits on a banking organization's capital 
distributions and certain discretionary bonus payments if the banking 
organization does not hold a specified amount of common equity tier 1 
capital in addition to the amount necessary to meet its minimum risk-
based capital requirements. This NPR also would establish more 
conservative standards for including an instrument in regulatory 
capital. As discussed in the proposal, the revisions set forth in this 
NPR are consistent with section 171 of the Dodd-Frank Wall Street 
Reform and Consumer Protection Act (Dodd-Frank Act), which requires the 
agencies to establish minimum risk-based and leverage capital 
requirements.
    In connection with the proposed changes to the agencies' capital 
rules in this NPR, the agencies are also seeking comment on the two 
related NPRs published elsewhere in today's Federal Register. The two 
related NPRs are discussed further in the SUPPLEMENTARY INFORMATION.

DATES: Comments must be submitted on or before October 22, 2012.

ADDRESSES: Comments should be directed to:
    OCC: Because paper mail in the Washington, DC area and at the OCC 
is subject to delay, commenters are encouraged to submit comments by 
the Federal eRulemaking Portal or email, if possible. Please use the 
title ``Regulatory Capital Rules: Regulatory Capital, Implementation of 
Basel III, Minimum Regulatory Capital Ratios, Capital Adequacy, 
Transition Provisions, and Prompt Corrective Action'' to facilitate the 
organization and distribution of the comments. You may submit comments 
by any of the following methods:
    Federal eRulemaking Portal--``regulations.gov'': Go to http://www.regulations.gov. Click ``Advanced Search''. Select ``Document 
Type'' of ``Proposed Rule'', and in ``By Keyword or ID'' box, enter 
Docket ID ``OCC-2012-0008,'' and click ``Search''. If proposed rules 
for more than one agency are listed, in the ``Agency'' column, locate 
the notice of proposed rulemaking for the OCC. Comments can be filtered 
by agency using the filtering tools on the left side of the screen. In 
the ``Actions'' column, click on ``Submit a Comment'' or ``Open Docket 
Folder'' to submit or view public comments and to view supporting and 
related materials for this rulemaking action.
     Click on the ``Help'' tab on the Regulations.gov home page 
to get information on using Regulations.gov, including instructions for 
submitting or viewing public comments, viewing other supporting and 
related materials, and viewing the docket after the close of the 
comment period.
     Email: regs.comments@occ.treas.gov.
     Mail: Office of the Comptroller of the Currency, 250 E 
Street SW., Mail Stop 2-3, Washington, DC 20219.
     Fax: (202) 874-5274.
     Hand Delivery/Courier: 250 E Street SW., Mail Stop 2-3, 
Washington, DC 20219.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket ID OCC-2012-0008'' in your comment. In general, the OCC will 
enter all comments received into the docket and publish them on 
Regulations.gov without change, including any business or personal 
information that you provide such as name and address information, 
email addresses, or phone numbers. Comments received, including 
attachments and other supporting materials, are part of the public 
record and subject to public disclosure. Do not enclose any information 
in your comment or supporting materials that you consider confidential 
or inappropriate for public disclosure.
    You may review comments and other related materials that pertain to 
this notice by any of the following methods:
     Viewing Comments Electronically: Go to http://www.regulations.gov. Click ``Advanced Search''. Select ``Document 
Type'' of ``Public Submission'' and in ``By Keyword or ID'' box enter 
Docket ID ``OCC-2012-0008,'' and click ``Search.'' If comments from 
more than one agency are listed, the ``Agency'' column will indicate 
which comments were received by the OCC. Comments can be filtered by 
Agency using the filtering tools on the left side of the screen.
     Viewing Comments Personally: You may personally inspect 
and photocopy comments at the OCC, 250 E Street SW., Washington, DC 
20219. For security reasons, the OCC requires that visitors make an 
appointment to inspect comments. You may do so by calling (202) 874-
4700. Upon arrival, visitors will be required to present valid 
government-issued photo identification and to submit to security 
screening in order to inspect and photocopy comments.
     Docket: You may also view or request available background 
documents and project summaries using the methods described previously.
    Board: When submitting comments, please consider submitting your 
comments by email or fax because paper mail in the Washington, DC, area 
and at the Board may be subject to delay. You may submit comments, 
identified by Docket No. R-1430; RIN No. 7100-AD87, by any of the 
following methods:

[[Page 52793]]

     Agency Web Site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: regs.comments@federalreserve.gov. Include docket 
number in the subject line of the message.
     Fax: (202) 452-3819 or (202) 452-3102.
     Mail: Jennifer J. Johnson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue NW., 
Washington, DC 20551.
    All public comments are available from the Board's Web site at 
http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons. Accordingly, your 
comments will not be edited to remove any identifying or contact 
information. Public comments may also be viewed electronically or in 
paper form in Room MP-500 of the Board's Martin Building (20th and C 
Street NW., Washington, DC 20551) between 9 a.m. and 5 p.m. on 
weekdays.
    FDIC: You may submit comments by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web site: http://www.FDIC.gov/regulations/laws/federal/propose.html.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments/Legal ESS, Federal Deposit Insurance Corporation, 550 17th 
Street NW., Washington, DC 20429.
     Hand Delivered/Courier: The guard station at the rear of 
the 550 17th Street building (located on F Street), on business days 
between 7:00 a.m. and 5:00 p.m.
     Email: comments@FDIC.gov.
     Instructions: Comments submitted must include ``FDIC'' and 
``RIN 3064-AD95.'' Comments received will be posted without change to 
http://www.FDIC.gov/regulations/laws/federal/propose.html, including 
any personal information provided.

FOR FURTHER INFORMATION CONTACT: OCC: Margot Schwadron, Senior Risk 
Expert, (202) 874-6022; David Elkes, Risk Expert, (202) 874-3846; Mark 
Ginsberg, Risk Expert, (202) 927-4580; or Ron Shimabukuro, Senior 
Counsel, Patrick Tierney, Counsel, or Carl Kaminski, Senior Attorney, 
Legislative and Regulatory Activities Division, (202) 874-5090, Office 
of the Comptroller of the Currency, 250 E Street SW., Washington, DC 
20219.
    Board: Anna Lee Hewko, Assistant Director, (202) 530-6260, Thomas 
Boemio, Manager, (202) 452-2982, Constance M. Horsley, Manager, (202) 
452-5239, or Juan C. Climent, Senior Supervisory Financial Analyst, 
(202) 872-7526, Capital and Regulatory Policy, Division of Banking 
Supervision and Regulation; or Benjamin McDonough, Senior Counsel, 
(202) 452-2036, April C. Snyder, Senior Counsel, (202) 452-3099, or 
Christine Graham, Senior Attorney, (202) 452-3005, Legal Division, 
Board of Governors of the Federal Reserve System, 20th and C Streets 
NW., Washington, DC 20551. For the hearing impaired only, 
Telecommunication Device for the Deaf (TDD), (202) 263-4869.
    FDIC: Bobby R. Bean, Associate Director, bbean@fdic.gov; Ryan 
Billingsley, Senior Policy Analyst, rbillingsley@fdic.gov; Karl Reitz, 
Senior Policy Analyst, kreitz@fdic.gov, Division of Risk Management 
Supervision; David Riley, Senior Policy Analyst, dariley@fdic.gov, 
Division of Risk Management Supervision, Capital Markets Branch, (202) 
898-6888; or Mark Handzlik, Counsel, mhandzlik@fdic.gov, Michael 
Phillips, Counsel, mphillips@fdic.gov, Greg Feder, Counsel, 
gfeder@fdic.gov, or Ryan Clougherty, Senior Attorney, 
rclougherty@fdic.gov; Supervision Branch, Legal Division, Federal 
Deposit Insurance Corporation, 550 17th Street NW., Washington, DC 
20429.

SUPPLEMENTARY INFORMATION: In connection with the proposed changes to 
the agencies' capital rules in this NPR, the agencies are also seeking 
comment on the two related NPRs published elsewhere in today's Federal 
Register. In the notice titled ``Regulatory Capital Rules: Standardized 
Approach for Risk-Weighted Assets; Market Discipline and Disclosure 
Requirements'' (Standardized Approach NPR), the agencies are proposing 
to revise and harmonize their rules for calculating risk-weighted 
assets to enhance risk sensitivity and address weaknesses identified 
over recent years, including by incorporating aspects of the BCBS's 
Basel II standardized framework in the ``International Convergence of 
Capital Measurement and Capital Standards: A Revised Framework,'' 
including subsequent amendments to that standard, and recent BCBS 
consultative papers. The Standardized Approach NPR also includes 
alternatives to credit ratings, consistent with section 939A of the 
Dodd-Frank Act. The revisions include methodologies for determining 
risk-weighted assets for residential mortgages, securitization 
exposures, and counterparty credit risk. The Standardized Approach NPR 
also would introduce disclosure requirements that would apply to top-
tier banking organizations domiciled in the United States with $50 
billion or more in total assets, including disclosures related to 
regulatory capital instruments.
    The proposals in this NPR and the Standardized Approach NPR would 
apply to all banking organizations that are currently subject to 
minimum capital requirements (including national banks, state member 
banks, state nonmember banks, state and federal savings associations, 
and top-tier bank holding companies domiciled in the United States not 
subject to the Board's Small Bank Holding Company Policy Statement (12 
CFR part 225, appendix C)), as well as top-tier savings and loan 
holding companies domiciled in the United States (together, banking 
organizations).
    In the notice titled ``Regulatory Capital Rules: Advanced 
Approaches Risk-Based Capital Rule; Market Risk Capital Rule,'' 
(Advanced Approaches and Market Risk NPR) the agencies are proposing to 
revise the advanced approaches risk-based capital rules consistent with 
Basel III and other changes to the BCBS's capital standards. The 
agencies also propose to revise the advanced approaches risk-based 
capital rules to be consistent with section 939A and section 171 of the 
Dodd-Frank Act. Additionally, in the Advanced Approaches and Market 
Risk NPR, the OCC and FDIC are proposing that the market risk capital 
rules be applicable to federal and state savings associations and the 
Board is proposing that the advanced approaches and market risk capital 
rules apply to top-tier savings and loan holding companies domiciled in 
the United States, in each case, if stated thresholds for trading 
activity are met.
    As described in this NPR, the agencies also propose to codify their 
regulatory capital rules, which currently reside in various appendixes 
to their respective regulations. The proposals are published in three 
separate NPRs to reflect the distinct objectives of each proposal, to 
allow interested parties to better understand the various aspects of 
the overall capital framework, including which aspects of the rules 
would apply to which banking organizations, and to help interested 
parties better focus their comments on areas of particular interest.

[[Page 52794]]

Table of Contents \1\
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    \1\ Sections marked with an asterisk generally would not apply 
to less-complex banking organizations.
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I. Introduction
    A. Overview of the Proposed Changes to the Agencies' Current 
Capital Framework. A summary of the proposed changes to the 
agencies' current capital framework through three concurrent notices 
of proposed rulemaking, including comparison of key provisions of 
the proposals to the agencies' general risk-based and leverage 
capital rules.
    B. Background. A brief review of the evolution of the agencies' 
capital rules and the Basel capital framework, including an overview 
of the rationale for certain revisions in the Basel capital 
framework.
II. Minimum Capital Requirements, Regulatory Capital Buffer, and 
Requirements for Overall Capital Adequacy
    A. Minimum Capital Requirements and Regulatory Capital Buffer. A 
short description of the minimum capital ratios and their 
incorporation in the agencies' Prompt Corrective Action (PCA) 
framework; introduction of a regulatory capital buffer.
    B. Leverage Ratio
    1. Minimum Tier 1 Leverage Ratio. A description of the minimum 
tier 1 leverage ratio, including the calculation of the numerator 
and the denominator.
    2. Supplementary Leverage Ratio for Advanced Approaches Banking 
Organizations.* A description of the new supplementary leverage 
ratio for advanced approaches banking organizations, including the 
calculation of the total leverage exposure.
    C. Capital Conservation Buffer. A description of the capital 
conservation buffer, which is designed to limit capital 
distributions and certain discretionary bonus payments if a banking 
organization does not hold a certain amount of common equity tier 1 
capital in additional to the minimum risk-based capital ratios.
    D. Countercyclical Capital Buffer.* A description of the 
countercyclical buffer applicable to advanced approaches banking 
organizations, which would serve as an extension of the capital 
conservation buffer.
    E. Prompt Corrective Action Requirements. A description of the 
proposed revisions to the agencies' prompt corrective action 
requirements, including incorporation of a common equity tier 1 
capital ratio, an updated definition of tangible common equity, and, 
for advanced approaches banking organizations only, a supplementary 
leverage ratio.
    F. Supervisory Assessment of Overall Capital Adequacy. A brief 
overview of the capital adequacy requirements and supervisory 
assessment of a banking organization's capital adequacy.
    G. Tangible Capital Requirement for Federal Savings 
Associations. A discussion of a statutory capital requirement unique 
to federal savings associations.
III. Definition of Capital
    A. Capital Components and Eligibility Criteria for Regulatory 
Capital Instruments
    1. Common Equity Tier 1 Capital. A description of the common 
equity tier 1 capital elements and a description of the eligibility 
criteria for common equity tier 1 capital instruments.
    2. Additional Tier 1 Capital. A description of the additional 
tier 1 capital elements and a description of the eligibility 
criteria for additional tier 1 capital instruments.
    3. Tier 2 Capital. A description of the tier 2 capital elements 
and a description of the eligibility criteria for tier 2 capital 
instruments.
    4. Capital Instruments of Mutual Banking Organizations. A 
discussion of potential issues related to capital instruments 
specific to mutual banking organizations.
    5. Grandfathering of Certain Capital Instruments. A discussion 
of the recognition within regulatory capital of instruments 
specifically related to certain U.S. government programs.
    6. Agency Approval of Capital Elements. A description of the 
approval process for new capital instruments.
    7. Addressing the Point of Non-viability Requirements under 
Basel III.* A discussion of disclosure requirements for advanced 
approaches banking organizations for regulatory capital instruments 
addressing the point of non-viability requirements in Basel III.
    8. Qualifying Capital Instruments Issued by Consolidated 
Subsidiaries of a Banking Organization. A description of limits on 
the inclusion of minority interest in regulatory capital, including 
a discussion of Real Estate Investment Trust (REIT) preferred 
securities.
    B. Regulatory Adjustments and Deductions
    1. Regulatory Deductions from Common Equity Tier 1 Capital. A 
discussion of the treatment of goodwill and certain other intangible 
assets and certain deferred tax assets.
    2. Regulatory Adjustments to Common Equity Tier 1 Capital. A 
discussion of the adjustments to common equity tier 1 for certain 
cash flow hedges and changes in a banking organization's own 
creditworthiness.
    3. Regulatory Deductions Related to Investments in Capital 
Instruments. A discussion of the treatment for capital investments 
in other financial institutions.
    4. Items subject to the 10 and 15 Percent Common Equity Tier 1 
Capital Threshold Deductions. A discussion of the treatment of 
mortgage servicing assets, certain capital investments in other 
financial institutions and certain deferred tax assets.
    5. Netting of Deferred Tax Liabilities against Deferred Tax 
Assets and Other Deductible Assets. A discussion of a banking 
organization's option to net deferred tax liabilities against 
deferred tax assets if certain conditions are met under the 
proposal.
    6. Deduction from Tier 1 Capital of Investments in Hedge Funds 
and Private Equity Funds Pursuant to section 619 of the Dodd-Frank 
Act.* A description of the deduction from tier 1 capital for 
investments in hedge funds and private equity funds pursuant to 
section 619 of the Dodd-Frank Act.
IV. Denominator Changes. A description of the changes to the 
calculation of risk-weighted asset amounts related to the Basel III 
regulatory capital requirements.
V. Transition Provisions
    A. Minimum Regulatory Capital Ratios. A description of the 
transition provisions for minimum regulatory capital ratios.
    B. Capital Conservation and Countercyclical Capital Buffer. A 
description of the transition provisions for the capital 
conservation buffer, and for advanced approaches banking 
organizations, the countercyclical capital buffer.
    C. Regulatory Capital Adjustments and Deductions. A description 
of the transition provisions for regulatory capital adjustments and 
deductions.
    D. Non-qualifying Capital Instruments. A description of the 
transition provisions for non-qualifying capital instruments.
    E. Leverage Ratio.* A description of the transition provisions 
for the new supplementary leverage ratio for advanced approaches 
banking organizations.
VI. Additional OCC Technical Amendments. A description of additional 
technical and conforming amendments to the OCC's current capital 
framework in 12 CFR part 3.
VII. Abbreviations
VIII. Regulatory Flexibility Act Analysis
IX. Paperwork Reduction Act
X. Plain Language
XI. OCC Unfunded Mandates Reform Act of 1995 Determination
Addendum 1: Summary of This NPR for Community Banking Organizations

I. Introduction

A. Overview of the Proposed Changes to the Agencies' Current Capital 
Framework

    The Office of the Comptroller of the Currency (OCC), Board of 
Governors of the Federal Reserve System (Board), and the Federal 
Deposit Insurance Corporation (FDIC) (collectively, the agencies) are 
proposing comprehensive revisions to their regulatory capital framework 
through three concurrent notices of proposed rulemaking (NPR). These 
proposals would revise the agencies' current general risk-based rules, 
advanced approaches risk-based capital rules (advanced approaches), and 
leverage capital rules (collectively, the current capital rules).\2\ 
The proposed

[[Page 52795]]

revisions incorporate changes made by the Basel Committee on Banking 
Supervision (BCBS) to the Basel capital framework, including those in 
``Basel III: A Global Regulatory Framework for More Resilient Banks and 
Banking Systems'' (Basel III).\3\ The proposed revisions also would 
implement relevant provisions of the Dodd-Frank Act and restructure the 
agencies' capital rules into a harmonized, codified regulatory capital 
framework.\4\
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    \2\ The agencies' general risk-based capital rules are at 12 CFR 
part 3, appendix A, 12 CFR part 167 (OCC); 12 CFR parts 208 and 225, 
appendix A (Board); and 12 CFR part 325, appendix A, and 12 CFR part 
390, subpart Z (FDIC). The agencies' current leverage rules are at 
12 CFR 3.6(b), 3.6(c), and 167.6 (OCC); 12 CFR part 208, appendix B, 
and 12 CFR part 225, appendix D (Board); and 12 CFR 325.3, and 
390.467 (FDIC) (general risk-based capital rules). For banks and 
bank holding companies with significant trading activity, the 
general risk-based capital rules are supplemented by the agencies' 
market risk rules, which appear at 12 CFR part 3, appendix B (OCC); 
12 CFR part 208, appendix E, and 12 CFR part 225, appendix E 
(Board); and 12 CFR part 325, appendix C (FDIC) (market risk rules).
    The agencies' advanced approaches rules are at 12 CFR part 3, 
appendix C, 12 CFR part 167, appendix C, (OCC); 12 CFR part 208, 
appendix F, and 12 CFR part 225, appendix G (Board); 12 CFR part 
325, appendix D, and 12 CFR part 390, subpart Z, Appendix A (FDIC) 
(advanced approaches rules). The advanced approaches rules are 
generally mandatory for banking organizations and their subsidiaries 
that have $250 billion or more in total consolidated assets or that 
have consolidated total on-balance sheet foreign exposure at the 
most recent year-end equal to $10 billion or more. Other banking 
organizations may use the advanced approaches rules with the 
approval of their primary federal supervisor. See 12 CFR part 3, 
appendix C, section 1(b) (national banks); 12 CFR part 167, appendix 
C (federal savings associations); 12 CFR part 208, appendix F, 
section 1(b) (state member banks); 12 CFR part 225, appendix G, 
section 1(b) (bank holding companies); 12 CFR part 325, appendix D, 
section 1(b) (state nonmember banks); and 12 CFR part 390, subpart 
Z, appendix A, section 1(b) (state savings associations).
    The market risk capital rules apply to a banking organization if 
its total trading assets and liabilities is 10 percent or more of 
total assets or exceeds $1 billion. See 12 CFR part 3, appendix B, 
section 1(b) (national banks); 12 CFR parts 208 and 225, appendix E, 
section 1(b) (state member banks and bank holding companies, 
respectively); and 12 CFR part 325, appendix C, section 1(b) (state 
nonmember banks).
    \3\ The BCBS is a committee of banking supervisory authorities, 
which was established by the central bank governors of the G-10 
countries in 1975. It currently consists of senior representatives 
of bank supervisory authorities and central banks from Argentina, 
Australia, Belgium, Brazil, Canada, China, France, Germany, Hong 
Kong SAR, India, Indonesia, Italy, Japan, Korea, Luxembourg, Mexico, 
the Netherlands, Russia, Saudi Arabia, Singapore, South Africa, 
Sweden, Switzerland, Turkey, the United Kingdom, and the United 
States. Documents issued by the BCBS are available through the Bank 
for International Settlements Web site at http://www.bis.org.
    \4\ Public Law 111-203, 124 Stat. 1376, 1435-38 (2010) (Dodd-
Frank Act).
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    This notice (Basel III NPR) proposes the Basel III revisions to 
international capital standards related to minimum requirements, 
regulatory capital, and additional capital ``buffers'' to enhance the 
resiliency of banking organizations, particularly during periods of 
financial stress. It also proposes transition periods for many of the 
proposed requirements, consistent with Basel III and the Dodd-Frank 
Act. A second NPR (Standardized Approach NPR) would revise the 
methodologies for calculating risk-weighted assets in the general risk-
based capital rules, incorporating aspects of the Basel II Standardized 
Approach and other changes.\5\ The Standardized Approach NPR also 
proposes alternative standards of creditworthiness (to credit ratings) 
consistent with section 939A of the Dodd-Frank Act.\6\ A third NPR 
(Advanced Approaches and Market Risk NPR) proposes changes to the 
advanced approaches rules to incorporate applicable provisions of Basel 
III and other agreements reached by the BCBS since 2009, proposes to 
apply the market risk capital rule (market risk rule) to savings 
associations and savings and loan holding companies and to apply the 
advanced approaches rule to savings and loan holding companies, and 
also removes references to credit ratings.
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    \5\ See BCBS, ``International Convergence of Capital Measurement 
and Capital Standards: A Revised Framework,'' (June 2006), available 
at http://www.bis.org/publ/bcbs128.htm (Basel II).
    \6\ See section 939A of the Dodd-Frank Act (15 U.S.C. 78o-7 
note).
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    Other than bank holding companies subject to the Board's Small Bank 
Holding Company Policy Statement \7\ (small bank holding companies), 
the proposals in the Basel III NPR and the Standardized Approach NPR 
would apply to all banking organizations currently subject to minimum 
capital requirements, including national banks, state member banks, 
state nonmember banks, state and federal savings associations, top-tier 
bank holding companies domiciled in the United States that are not 
small bank holding companies, as well as top-tier savings and loan 
holding companies domiciled in the United States (together, banking 
organizations).\8\ Certain aspects of these proposals would apply only 
to advanced approaches banking organizations or banking organizations 
with total consolidated assets of more than $50 billion. Consistent 
with the Dodd-Frank Act, a bank holding company subsidiary of a foreign 
banking organization that is currently relying on the Board's 
Supervision and Regulation Letter (SR) 01-1 would not be required to 
comply with the proposed capital requirements under any of these NPRs 
until July 21, 2015.\9\ In addition, the Board is proposing for all 
three NPRs to apply on a consolidated basis to top-tier savings and 
loan holding companies domiciled in the United States, subject to the 
applicable thresholds of the advanced approaches rules and the market 
risk rules.
---------------------------------------------------------------------------

    \7\ 12 CFR part 225, appendix C (Small Bank Holding Company 
Policy Statement).
    \8\ Small bank holding companies would continue to be subject to 
the Small Bank Holding Company Policy Statement. Application of the 
proposals to all savings and loan holding companies (including small 
savings and loan holding companies) is consistent with the transfer 
of supervisory responsibilities to the Board and the requirements of 
section 171 of the Dodd-Frank Act. Section 171 of the Dodd-Frank Act 
by its terms does not apply to small bank holding companies, but 
there is no exemption from the requirements of section 171 for small 
savings and loan holding companies. See 12 U.S.C. 5371.
    \9\ See section 171(b)(4)(E) of the Dodd-Frank Act (12 U.S.C. 
5371(b)(4)(E)); see also SR letter 01-1 (January 5, 2001), available 
at http://www.federalreserve.gov/boarddocs/srletters/2001/sr0101.htm.
---------------------------------------------------------------------------

    The agencies are publishing all the proposed changes to the 
agencies' current capital rules at the same time in these three NPRs so 
that banking organizations can read the three NPRs together and assess 
the potential cumulative impact of the proposals on their operations 
and plan appropriately. The overall proposal is being divided into 
three separate NPRs to reflect the distinct objectives of each proposal 
and to allow interested parties to better understand the various 
aspects of the overall capital framework, including which aspects of 
the rules will apply to which banking organizations, and to help 
interested parties better focus their comments on areas of particular 
interest. The agencies believe that separating the proposals into three 
NPRs makes it easier for banking organizations of all sizes to more 
easily understand which proposed changes are related to the agencies' 
objective to improve the quality and increase the quantity of capital 
(Basel III NPR) and which are related to the agencies' objective to 
enhance the overall risk-sensitivity of the calculation of a banking 
organization's total risk-weighted assets (Standardized Approach NPR).
    The agencies believe that the proposals would result in capital 
requirements that better reflect banking organizations' risk profiles 
and enhance their ability to continue functioning as financial 
intermediaries, including during periods of financial stress, thereby 
improving the overall resiliency of the banking system. The agencies 
have carefully considered the potential impact of the three NPRs on all 
banking organizations, including community banking organizations, and 
sought to minimize the potential burden of these changes where 
consistent with applicable law and the agencies' goals of

[[Page 52796]]

establishing a robust and comprehensive capital framework.
    In developing each of the three NPRs, wherever possible and 
appropriate, the agencies have tailored the proposed requirements to 
the size and complexity of a banking organization. The agencies believe 
that most banking organizations already hold sufficient capital to meet 
the proposed requirements, but recognize that the proposals entail 
significant changes with respect to certain aspects of the agencies' 
capital requirements. The agencies are proposing transition 
arrangements or delayed effective dates for aspects of the revised 
capital requirements consistent with Basel III and the Dodd-Frank Act. 
The agencies anticipate that they separately would seek comment on 
regulatory reporting instructions to harmonize regulatory reports with 
these proposals in a subsequent Federal Register notice.
    Many of the proposed requirements in the three NPRs are not 
applicable to smaller, less complex banking organizations. To assist 
these banking organizations in rapidly identifying the elements of 
these proposals that would apply to them, this NPR and the Standardized 
Approach NPR provide, as addenda to the corresponding preambles, a 
summary of the various aspects of each NPR designed to clearly and 
succinctly describe the two NPRs as they would typically apply to 
smaller, less complex banking organizations.\10\
---------------------------------------------------------------------------

    \10\ The Standardized Approach NPR also contains a second 
addendum to the preamble, which contains the definitions proposed 
under the Basel III NPR. Many of the proposed definitions also are 
applicable to the Standardized Approach NPR, which is published 
elsewhere in today's Federal Register.
---------------------------------------------------------------------------

Basel III NPR
    In 2010, the BCBS published Basel III, a comprehensive reform 
package that is designed to improve the quality and the quantity of 
regulatory capital and to build additional capacity into the banking 
system to absorb losses in times of future market and economic 
stress.\11\ This NPR proposes the majority of the revisions to 
international capital standards in Basel III, including a more 
restrictive definition of regulatory capital, higher minimum regulatory 
capital requirements, and a capital conservation and a countercyclical 
capital buffer, to enhance the ability of banking organizations to 
absorb losses and continue to operate as financial intermediaries 
during periods of economic stress.\12\ The proposal would place limits 
on banking organizations' capital distributions and certain 
discretionary bonuses if they do not hold specified ``buffers'' of 
common equity tier 1 capital in excess of the new minimum capital 
requirements.
---------------------------------------------------------------------------

    \11\ BCBS published Basel III in December 2010 and revised it in 
June 2011. The text is available at http://www.bis.org/publ/bcbs189.htm. This NPR does not incorporate the Basel III reforms 
related to liquidity risk management, published in December 2010, 
``Basel III: International Framework for Liquidity Risk Measurement, 
Standards and Monitoring.'' The agencies expect to propose rules to 
implement the Basel III liquidity provisions in a separate 
rulemaking.
    \12\ Selected aspects of Basel III that would apply only to 
advanced approaches banking organizations are proposed in the 
Advanced Approaches and Market Risk NPR.
---------------------------------------------------------------------------

    This NPR also includes a leverage ratio contained in Basel III that 
incorporates certain off-balance sheet assets in the denominator 
(supplementary leverage ratio). The supplementary leverage ratio would 
apply only to banking organizations that use the advanced approaches 
rules (advanced approaches banking organizations). The current leverage 
ratio requirement (computed using the proposed new definition of 
capital) would continue to apply to all banking organizations, 
including advanced approaches banking organizations.
    In this NPR, the agencies also propose revisions to the agencies' 
prompt corrective action (PCA) rules to incorporate the proposed 
revisions to the minimum regulatory capital ratios.\13\
---------------------------------------------------------------------------

    \13\ 12 CFR part 6, 12 CFR 165 (OCC); 12 CFR part 208, subpart E 
(Board); 12 CFR part 325 and part 390, subpart Y (FDIC).
---------------------------------------------------------------------------

Standardized Approach NPR
    The Standardized Approach NPR aims to enhance the risk-sensitivity 
of the agencies' capital requirements by revising the calculation of 
risk-weighted assets. It would do this by incorporating aspects of the 
Basel II Standardized Approach, including aspects of the 2009 
``Enhancements to the Basel II Framework'' (2009 Enhancements), and 
other changes designed to improve the risk-sensitivity of the general 
risk-based capital requirements. The proposed changes are described in 
further detail in the preamble to the Standardized Approach NPR.\14\ As 
compared to the general risk-based capital rules, the Standardized 
Approach NPR includes a greater number of exposure categories for 
purposes of calculating total risk-weighted assets, provides for 
greater recognition of financial collateral, and permits a wider range 
of eligible guarantors. In addition, to increase transparency in the 
derivatives market, the Standardized Approach NPR would provide a more 
favorable capital treatment for derivative and repo-style transactions 
cleared through central counterparties (as compared to the treatment 
for bilateral transactions) in order to create an incentive for banking 
organizations to enter into cleared transactions. Further, to promote 
transparency and market discipline, the Standardized Approach NPR 
proposes disclosure requirements that would apply to top-tier banking 
organizations domiciled in the United States with $50 billion or more 
in total assets that are not subject to disclosure requirements under 
the advanced approaches rule.
---------------------------------------------------------------------------

    \14\ See BCBS, ``Enhancements to the Basel II Framework'' (July 
2009), available at http://www.bis.org/publ/bcbs157.htm (2009 
Enhancements). See also BCBS, ``International Convergence of Capital 
Measurement and Capital Standards: A Revised Framework,'' (June 
2006), available at http://www.bis.org/publ/bcbs128.htm (Basel II).
---------------------------------------------------------------------------

    In the Standardized Approach NPR, the agencies also propose to 
revise the calculation of risk-weighted assets for certain exposures, 
consistent with the requirements of section 939A of the Dodd-Frank Act 
by using standards of creditworthiness that are alternatives to credit 
ratings. These alternative standards would be used to assign risk 
weights to several categories of exposures, including sovereigns, 
public sector entities, depository institutions, and securitization 
exposures. These alternative standards and risk-based capital 
requirements have been designed to result in capital requirements that 
are consistent with safety and soundness, while also exhibiting risk 
sensitivity to the extent possible. Furthermore, these capital 
requirements are intended to be similar to those generated under the 
Basel capital framework.
    The Standardized Approach NPR would require banking organizations 
to implement the revisions contained in that NPR on January 1, 2015; 
however, the proposal would also allow banking organizations to early 
adopt the Standardized Approach revisions.
Advanced Approaches and Market Risk NPR
    The proposals in the Advanced Approaches and Market Risk NPR would 
amend the advanced approaches rules and integrate the agencies' revised 
market risk rules into the codified regulatory capital rules.\15\ The 
Advanced Approaches and Market Risk NPR would incorporate revisions to 
the Basel capital framework published by the BCBS in a series of 
documents between 2009 and 2011, including the 2009 Enhancements and 
Basel III. The proposals would also revise the

[[Page 52797]]

advanced approaches rules to achieve consistency with relevant 
provisions of the Dodd-Frank Act.
---------------------------------------------------------------------------

    \15\ The agencies' market risk rules are revised by a final rule 
published elsewhere today in the Federal Register.
---------------------------------------------------------------------------

    Significant proposed revisions to the advanced approaches rules 
include the treatment of counterparty credit risk, the methodology for 
computing risk-weighted assets for securitization exposures, and risk 
weights for exposures to central counterparties. For example, the 
Advanced Approaches and Market Risk NPR proposes capital requirements 
to account for credit valuation adjustments (CVA), wrong-way risk, 
cleared derivative and repo-style transactions (similar to proposals in 
the Standardized Approach NPR) and default fund contributions to 
central counterparties. The Advanced Approaches and Market Risk NPR 
would also require banking organizations subject to the advanced 
approaches rules (advanced approaches banking organizations) to conduct 
more rigorous credit analysis of securitization exposures and implement 
certain disclosure requirements.
    The Advanced Approaches and Market Risk NPR additionally proposes 
to remove the ratings-based approach and the internal assessment 
approach from the current advanced approaches rules' securitization 
hierarchy consistent with section 939A of the Dodd-Frank Act, and to 
include in the hierarchy the simplified supervisory formula approach 
(SSFA) as a methodology to calculate risk-weighted assets for 
securitization exposures. The SSFA methodology is also proposed in the 
Standardized Approach NPR and is included in the market risk rule. The 
agencies also are proposing to remove references to credit ratings from 
certain defined terms under the advanced approaches rules and replace 
them with alternative standards of creditworthiness.
    Banking organizations currently subject to the advanced approaches 
rule would continue to be subject to the advanced approaches rules. In 
addition, the Board proposes to apply the advanced approaches and 
market risk rules to savings and loan holding companies, and the OCC 
and FDIC propose to apply the market risk rules to federal and state 
savings associations that meet the scope of application of those rules, 
respectively.
    For advanced approaches banking organizations, the regulatory 
capital requirements proposed in this NPR and the Standardized Approach 
NPR would be ``generally applicable'' capital requirements for purposes 
of section 171 of the Dodd-Frank Act.\16\
---------------------------------------------------------------------------

    \16\ See 12 U.S.C. 5371.
---------------------------------------------------------------------------

Proposed Structure of the Agencies' Regulatory Capital Framework and 
Key Provisions of the Three Proposals
    In connection with the changes proposed in the three NPRs, the 
agencies intend to codify their current regulatory capital requirements 
under applicable statutory authority. Under the revised structure, each 
agency's capital regulations would include definitions in subpart A. 
The minimum risk-based and leverage capital requirements and buffers 
would be contained in Subpart B and the definition of regulatory 
capital would be included in subpart C. Subpart D would include the 
risk-weighted asset calculations required of all banking organizations; 
these proposed risk-weighted asset calculations are described in the 
Standardized Approach NPR. Subpart E would contain the advanced 
approaches rules, including changes made pursuant to the advanced 
approach NPR. The market risk rule would be contained in subpart F. 
Transition provisions would be in subpart G. The agencies believe that 
this revision would reduce the burden associated with multiple 
reference points for applicable capital requirements, promote 
consistency of capital rules across the banking agencies, and reduce 
repetition of certain features, such as definitions, across the rules.
    Table 1 outlines the proposed structure of the agencies' capital 
rules, as well as references to the proposed revisions to the PCA 
rules.

 Table 1--Proposed Structure of the Agencies' Capital Rules and Proposed
                     Revisions to the PCA Framework
------------------------------------------------------------------------
         Subpart or regulation                Description of content
------------------------------------------------------------------------
Subpart A (included in the Basel III     Purpose; applicability;
 NPR).                                    reservation of authority;
                                          definitions.
Subpart B (included in the Basel III     Minimum capital requirements;
 NPR).                                    minimum leverage capital
                                          requirements; capital buffers.
Subpart C (included in the Basel III     Regulatory capital: Eligibility
 NPR).                                    criteria, minority interest,
                                          adjustments and deductions.
Subpart D (included in the Standardized  Calculation of standardized
 Approach NPR).                           total risk-weighted assets for
                                          general credit risk, off-
                                          balance sheet items, over the
                                          counter (OTC) derivative
                                          contracts, cleared
                                          transactions and default fund
                                          contributions, unsettled
                                          transactions, securitization
                                          exposures, and equity
                                          exposures. Description of
                                          credit risk mitigation.
Subpart E (included in the Advanced      Calculation of advanced
 Approaches and Market Risk NPR).         approaches total risk-weighted
                                          assets.
Subpart F (included in the Advanced      Calculation of market risk-
 Approaches and Market Risk NPR).         weighted assets.
Subpart G (included in the Basel III     Transition provisions.
 NPR).
Subpart D of Regulation H (Board), 12    Revised PCA capital framework,
 CFR part 6 (OCC), Subpart H of part      including introduction of a
 324 (FDIC).                              common equity tier 1 capital
                                          threshold; revision of the
                                          current PCA thresholds to
                                          incorporate the proposed
                                          regulatory capital minimums;
                                          an update of the definition of
                                          tangible common equity, and,
                                          for advanced approaches
                                          organizations only, a
                                          supplementary leverage ratio.
------------------------------------------------------------------------

    While the agencies are mindful that the proposal will result in 
higher capital requirements and costs associated with changing systems 
to calculate capital requirements, the agencies believe that the 
proposed changes are necessary to address identified weaknesses in the 
agencies' current capital rules; strengthen the banking sector and help 
reduce risk to the deposit insurance fund and the financial system; and 
revise the agencies' capital rules

[[Page 52798]]

consistent with the international agreements and U.S. law. Accordingly, 
this NPR includes transition arrangements that aim to provide banking 
organizations sufficient time to adjust to the proposed new rules and 
that are generally consistent with the transitional arrangements of the 
Basel capital framework.
    In December 2010, the BCBS conducted a quantitative impact study of 
internationally active banks to assess the impact of the capital 
adequacy standards announced in July 2009 and the Basel III proposal 
published in December 2009. Overall, the BCBS found that as a result of 
the proposed changes, banking organizations surveyed will need to hold 
more capital to meet the new minimum requirements. In addition, 
quantitative analysis by the Macroeconomic Assessment Group, a working 
group of the BCBS, found that the stronger Basel capital requirements 
would lower the probability of banking crises and their associated 
output losses while having only a modest negative impact on gross 
domestic product and lending costs, and that the negative impact could 
be mitigated by phasing the requirements in over time.\17\ The agencies 
believe that the benefits of these changes to the U.S. financial 
system, in terms of the reduction of risk to the deposit insurance fund 
and the financial system, ultimately outweigh the burden on banking 
organizations of compliance with the new standards.
---------------------------------------------------------------------------

    \17\ See ``Assessing the Macroeconomic Impact of the Transition 
to Stronger Capital and Liquidity Requirements'' (August 2010), 
available at http://www.bis.org/publ/othp10.pdf; ``An assessment of 
the long-term economic impact of stronger capital and liquidity 
requirements'' (August 2010), available at http://www.bis.org/publ/bcbs173.pdf.
---------------------------------------------------------------------------

    As part of developing this proposal, the agencies conducted an 
impact analysis using depository institution and bank holding company 
regulatory reporting data to estimate the change in capital that 
banking organizations would be required to hold to meet the proposed 
minimum capital requirements. The impact analysis assumed the proposed 
definition of capital for purposes of the numerator and the proposed 
standardized risk-weights for purposes of the denominator, and made 
stylized assumptions in cases where necessary input data were 
unavailable from regulatory reports. Based on the agencies' analysis, 
the vast majority of banking organizations currently would meet the 
fully phased-in minimum capital requirements as of March 31, 2012, and 
those organizations that would not meet the proposed minimum 
requirements should have ample time to adjust their capital levels by 
the end of the transition period.
    Table 2 summarizes key changes proposed in the Basel III and 
Standardized Approach NPRs and how these changes compare with the 
agencies' general risk-based and leverage capital rules.

 Table 2--Key Provisions of the Basel III and Standardized Approach NPRs
   as Compared With the Current Risk-Based and Leverage Capital Rules
------------------------------------------------------------------------
    Aspect of proposed requirements             Proposed treatment
------------------------------------------------------------------------
                              Basel III NPR
------------------------------------------------------------------------
Minimum Capital Ratios:
    Common equity tier 1 capital ratio   Introduces a minimum
     (section 10).                        requirement of 4.5 percent.
    Tier 1 capital ratio (section 10)..  Increases the minimum
                                          requirement from 4.0 percent
                                          to 6.0 percent.
    Total capital ratio (section 10)...  Minimum unchanged (remains at
                                          8.0 percent).
    Leverage ratio (section 10)........  Modifies the minimum leverage
                                          ratio requirement based on the
                                          new definition of tier 1
                                          capital. Introduces a
                                          supplementary leverage ratio
                                          requirement for advanced
                                          approaches banking
                                          organizations.
Components of Capital and Eligibility    Enhances the eligibility
 Criteria for Regulatory Capital          criteria for regulatory
 Instruments (sections 20-22).            capital instruments and adds
                                          certain adjustments to and
                                          deductions from regulatory
                                          capital, including increased
                                          deductions for mortgage
                                          servicing assets (MSAs) and
                                          deferred tax assets (DTAs) and
                                          new limits on the inclusion of
                                          minority interests in capital.
                                          Provides that unrealized gains
                                          and losses on all available
                                          for sale (AFS) securities and
                                          gains and losses associated
                                          with certain cash flow hedges
                                          flow through to common equity
                                          tier 1 capital.
Capital Conservation Buffer (section     Introduces a capital
 11).                                     conservation buffer of common
                                          equity tier 1 capital above
                                          the minimum risk-based capital
                                          requirements, which must be
                                          maintained to avoid
                                          restrictions on capital
                                          distributions and certain
                                          discretionary bonus payments.
Countercyclical Capital Buffer (section  Introduces for advanced
 11).                                     approaches banking
                                          organizations a mechanism to
                                          increase the capital
                                          conservation buffer during
                                          times of excessive credit
                                          growth.
------------------------------------------------------------------------
             Standardized Approach NPR Risk-Weighted Assets
------------------------------------------------------------------------
Credit exposures to:                     Unchanged.
    U.S. government and its agencies...
    U.S. government-sponsored entities.
    U.S. depository institutions and
     credit unions.
    U.S. public sector entities, such
     as states and municipalities
     (section 32).
Credit exposures to:                     Introduces a more risk-
Foreign sovereigns                        sensitive treatment using the
Foreign banks                             Country Risk Classification
Foreign public sector entities (section   measure produced by the
 32)                                      Organization for Economic
                                          Cooperation and Development.
Corporate exposures (section 32).......  Assigns a 100 percent risk
                                          weight to corporate exposures,
                                          including exposures to
                                          securities firms.

[[Page 52799]]

 
Residential mortgage exposures (section  Introduces a more risk-
 32).                                     sensitive treatment based on
                                          several criteria, including
                                          certain loan characteristics
                                          and the loan-to-value-ratio of
                                          the exposure.
High volatility commercial real estate   Applies a 150 percent risk
 exposures (section 32).                  weight to certain credit
                                          facilities that finance the
                                          acquisition, development or
                                          construction of real property.
Past due exposures (section 32)........  Applies a 150 percent risk
                                          weight to exposures that are
                                          not sovereign exposures or
                                          residential mortgage exposures
                                          and that are more than 90 days
                                          past due or on nonaccrual.
Securitization exposures (sections 41-   Maintains the gross-up approach
 45).                                     for securitization exposures.
                                         Replaces the current ratings-
                                          based approach with a formula-
                                          based approach for determining
                                          a securitization exposure's
                                          risk weight based on the
                                          underlying assets and
                                          exposure's relative position
                                          in the securitization's
                                          structure.
Equity exposures (sections 51-53)......  Introduces more risk-sensitive
                                          treatment for equity
                                          exposures.
Off-balance Sheet Items (sections 33)..  Revises the measure of the
                                          counterparty credit risk of
                                          repo-style transactions.
                                          Raises the credit conversion
                                          factor for most short-term
                                          commitments from zero percent
                                          to 20 percent.
Derivative Contracts (section 34)......  Removes the 50 percent risk
                                          weight cap for derivative
                                          contracts.
Cleared Transactions (section 35)......  Provides preferential capital
                                          requirements for cleared
                                          derivative and repo-style
                                          transactions (as compared to
                                          requirements for non-cleared
                                          transactions) with central
                                          counterparties that meet
                                          specified standards. Also
                                          requires that a clearing
                                          member of a central
                                          counterparty calculate a
                                          capital requirement for its
                                          default fund contributions to
                                          that central counterparty.
Credit Risk Mitigation (section 36)....  Provides a more comprehensive
                                          recognition of collateral and
                                          guarantees.
Disclosure Requirements (sections 61-    Introduces qualitative and
 63).                                     quantitative disclosure
                                          requirements, including
                                          regarding regulatory capital
                                          instruments, for banking
                                          organizations with total
                                          consolidated assets of $50
                                          billion or more that are not
                                          subject to the separate
                                          advanced approaches disclosure
                                          requirements.
------------------------------------------------------------------------

    Under section 165 of the Dodd-Frank Act, the Board is required to 
establish the enhanced risk-based and leverage capital requirements for 
bank holding companies with total consolidated assets of $50 billion or 
more and nonbank financial companies that the Financial Stability 
Oversight Council has designated for supervision by the Board 
(collectively, covered companies).\18\ The Board published for comment 
in the Federal Register on January 5, 2012, a proposal regarding the 
enhanced prudential standards and early remediation requirements. The 
capital requirements as proposed in the three NPRs would become a key 
part of the Board's overall approach to enhancing the risk-based 
capital and leverage standards applicable to covered companies in 
accordance with section 165 of the Dodd-Frank Act.\19\ In addition, the 
Board intends to supplement the enhanced risk-based capital and 
leverage requirements included in its January 2012 proposal with a 
subsequent proposal to implement a quantitative risk-based capital 
surcharge for covered companies or a subset of covered companies. The 
BCBS is calibrating a methodology for assessing an additional capital 
surcharge for global systemically important banks (G-SIBs).\20\ The 
Board intends to propose a quantitative risk-based capital surcharge in 
the United States based on the BCBS approach and consistent with the 
BCBS's implementation time frame. The forthcoming proposal would 
contemplate adopting implementing rules in 2014, and requiring G-SIBs 
to meet the capital surcharges on a phased-in basis from 2016-2019. The 
OCC also is reviewing the BCBS proposal and is considering whether to 
propose to apply a similar surcharge for globally significant national 
banks.
---------------------------------------------------------------------------

    \18\ See section 165 of the Dodd-Frank Act (12 U.S.C. 5365).
    \19\ 77 FR 594 (January 5, 2012).
    \20\ See ``Global Systemically Important Banks: Assessment 
Methodology and the Additional Loss Absorbency Requirement'' (July 
2011), available at http://www.bis.org/publ/bcbs201.pdf.
---------------------------------------------------------------------------

    Question 1: The agencies solicit comment on all aspects of the 
proposals including comment on the specific issues raised throughout 
this preamble. Commenters are requested to provide a detailed 
qualitative or quantitative analysis, as appropriate, as well as any 
relevant data and impact analysis to support their positions.

B. Background

    In 1989, the agencies established a risk-based capital framework 
for U.S. national banks, state member and nonmember banks, and bank 
holding companies with the general risk-based capital rules.\21\ The 
agencies based the framework on the ``International Convergence of 
Capital Measurement and Capital Standards'' (Basel I), released by the 
BCBS in 1988.\22\ The general risk-based capital rules instituted a 
uniform risk-based capital system that was more risk-sensitive than, 
and addressed several shortcomings in, the regulatory capital rules in 
effect prior to 1989. The agencies' capital rules also included a 
minimum leverage measure of capital to total assets, established in the 
early 1980s, to place a constraint on the maximum degree to which a 
banking organization can leverage its capital base.
---------------------------------------------------------------------------

    \21\ See 54 FR 4186 (January 27, 1989) (Board); 54 FR 4168 
(January 27, 1989) (OCC); 54 FR 11500 (March 21, 1989).
    \22\ BCBS, ``International Convergence of Capital Measurement 
and Capital Standards'' (July 1988), available at http://www.bis.org/publ/bcbs04a.htm.
---------------------------------------------------------------------------

    In 2004, the BCBS introduced a new international capital adequacy 
framework (Basel II) that was intended

[[Page 52800]]

to improve risk measurement and management processes and to better 
align minimum risk-based capital requirements with risk of the 
underlying exposures.\23\ Basel II is designed as a ``three pillar'' 
framework encompassing risk-based capital requirements for credit risk, 
market risk, and operational risk (Pillar 1); supervisory review of 
capital adequacy (Pillar 2); and market discipline through enhanced 
public disclosures (Pillar 3). To calculate risk-based capital 
requirements for credit risk, Basel II provides three approaches: the 
standardized approach (Basel II standardized approach), the foundation 
internal ratings-based approach, and the advanced internal ratings-
based approach. Basel II also introduces an explicit capital 
requirement for operational risk, which may be calculated using one of 
three approaches: the basic indicator approach, the standardized 
approach, or the advanced measurement approaches. On December 7, 2007, 
the agencies implemented the advanced approaches rules that 
incorporated Basel II advanced internal ratings-based approach for 
credit risk and the advanced measurement approaches for operational 
risk.\24\
---------------------------------------------------------------------------

    \23\ See ``International Convergence of Capital Measurement and 
Capital Standards: A Revised Framework'' (June 2006), available at 
http://www.bis.org/publ/bcbs128.htm.
    \24\ See 72 FR 69288 (December 7, 2007).
---------------------------------------------------------------------------

    To address some of the shortcomings in the international capital 
standards exposed during the crisis, the BCBS issued the ``2009 
Enhancements'' in July 2009 to enhance certain risk-based capital 
requirements and to encourage stronger management of credit and market 
risk. The ``2009 Enhancements'' strengthen the risk-based capital 
requirements for certain securitization exposures to better reflect 
their risk, increase the credit conversion factors for certain short-
term liquidity facilities, and require that banking organizations 
conduct more rigorous credit analysis of their exposures.\25\
---------------------------------------------------------------------------

    \25\ In July 2009, the BCBS also issued ``Revisions to the Basel 
II Market Risk Framework,'' available at http://www.bis.org/publ/bcbs193.htm. The agencies issued an NPR in January 2011 and a 
supplement in December 2011, that included provisions to implement 
the market-risk related provisions. 76 FR 1890 (January 11, 2011); 
76 FR 79380 (December 21, 2011).
---------------------------------------------------------------------------

    In 2010, the BCBS published a comprehensive reform package, Basel 
III, which is designed to improve the quality and the quantity of 
regulatory capital and to build additional capacity into the banking 
system to absorb losses in times of future market and economic stress. 
Basel III introduces or enhances a number of capital standards, 
including a stricter definition of regulatory capital, a minimum tier 1 
common equity ratio, the addition of a regulatory capital buffer, a 
leverage ratio, and a disclosure requirement for regulatory capital 
instruments. Implementing Basel III is the focus of this NPR, as 
described below. Certain elements of Basel III are also proposed in the 
Standardized Approach NPR and the Advanced Approaches and Market Risk 
NPR, as discussed in those notices.
Quality and Quantity of Capital
    The recent financial crisis demonstrated that the amount of high-
quality capital held by banks globally was insufficient to absorb 
losses during that period. In addition, some non-common stock capital 
instruments included in tier 1 capital did not absorb losses to the 
extent previously expected. A lack of clear and easily understood 
disclosures regarding the amount of high-quality regulatory capital and 
characteristics of regulatory capital instruments, as well as 
inconsistencies in the definition of capital across jurisdictions, 
contributed to the difficulties in evaluating a bank's capital 
strength. To evaluate banks' creditworthiness and overall stability 
more accurately, market participants increasingly focused on the amount 
of banks' tangible common equity, the most loss-absorbing form of 
capital.
    The crisis also raised questions about banks' ability to conserve 
capital during a stressful period or to cancel or defer interest 
payments on tier 1 capital instruments. For example, in some 
jurisdictions banks exercised call options on hybrid tier 1 capital 
instruments, even when it became apparent that the banks' capital 
positions would suffer as a result.
    Consistent with Basel III, the proposals in this NPR would address 
these deficiencies by imposing, among other requirements, stricter 
eligibility criteria for regulatory capital instruments and increasing 
the minimum tier 1 capital ratio from 4 to 6 percent. To help ensure 
that a banking organization holds truly loss-absorbing capital, the 
proposal also introduces a minimum common equity tier 1 capital to 
total risk-weighted assets ratio of 4.5 percent. In addition, the 
proposals would require that most regulatory deductions from, and 
adjustments to, regulatory capital (for example, the deductions related 
to mortgage servicing assets (MSAs) and deferred tax assets (DTAs) be 
applied to common equity tier 1 capital. The proposals would also 
eliminate certain features of the current risk-based capital rules, 
such as adjustments to regulatory capital to neutralize the effect on 
the capital account of unrealized gains and losses on AFS debt 
securities. To reduce the double counting of regulatory capital, Basel 
III also limits investments in the capital of unconsolidated financial 
institutions that would be included in regulatory capital and requires 
deduction from capital if a banking organization has exposures to these 
institutions that go beyond certain percentages of its common equity 
tier 1 capital. Basel III also revises risk-weights associated with 
certain items that are subject to deduction from regulatory capital.
    Finally, to promote transparency and comparability of regulatory 
capital across jurisdictions, Basel III introduces public disclosure 
requirements, including those for regulatory capital instruments, that 
are designed to help market participants assess and compare the overall 
stability and resiliency of banking organizations across jurisdictions.
Capital Conservation and Countercyclical Capital Buffer
    As noted previously, some banking organizations continued to pay 
dividends and substantial discretionary bonuses even as their financial 
condition weakened as a result of the recent financial crisis and 
economic downturn. Such capital distributions had a significant 
negative impact on the overall strength of the banking sector. To 
encourage better capital conservation by banking organizations and to 
improve the resiliency of the banking system, Basel III and this 
proposal include limits on capital distributions and discretionary 
bonuses for banking organizations that do not hold a specified amount 
of common equity tier 1 capital in addition to the common equity 
necessary to meet the minimum risk-based capital requirements (capital 
conservation buffer).
    Under this proposal, for advanced approaches banking organizations, 
the capital conservation buffer may be expanded by up to 2.5 percent of 
risk-weighted assets if the relevant national authority determines that 
financial markets in its jurisdiction are experiencing a period of 
excessive aggregate credit growth that is associated with an increase 
in system-wide risk. The countercyclical capital buffer is designed to 
take into account the macro-financial environment in which banking 
organizations function and help protect the banking system from the 
systemic vulnerabilities.

[[Page 52801]]

Basel III Leverage Ratio
    Since the early 1980s, U.S. banking organizations have been subject 
to a minimum leverage measure of capital to total assets designed to 
place a constraint on the maximum degree to which a banking 
organization can leverage its equity capital base. However, prior to 
the adoption of Basel III, the Basel capital framework did not include 
a leverage ratio requirement. It became apparent during the crisis that 
some banks built up excessive on- and off-balance sheet leverage while 
continuing to present strong risk-based capital ratios. In many 
instances, banks were forced by the markets to reduce their leverage 
and exposures in a manner that increased downward pressure on asset 
prices and further exacerbated overall losses in the financial sector.
    The BCBS introduced a leverage ratio (the Basel III leverage ratio) 
to discourage the acquisition of excess leverage and to act as a 
backstop to the risk-based capital requirements. The Basel III leverage 
ratio is defined as the ratio of tier 1 capital to a combination of on- 
and off-balance sheet assets; the minimum ratio is 3 percent. The 
introduction of the leverage requirement in the Basel capital framework 
should improve the resiliency of the banking system worldwide by 
providing an ultimate limit on the amount of leverage a banking 
organization may incur.
    As described in section II.B of this preamble, the agencies are 
proposing to apply the Basel III leverage ratio only to advanced 
approaches banking organizations as an additional leverage requirement 
(supplementary leverage ratio). For all banking organizations, the 
agencies are proposing to update and maintain the current leverage 
requirement, as revised to reflect the proposed definition of tier 1 
capital.
Additional Revisions to the Basel Capital Framework
    To facilitate the implementation of Basel III, the BCBS issued a 
series of releases in 2011 in the form of frequently asked 
questions.\26\ In addition, in 2011, the BCBS proposed to revise the 
treatment of counterparty credit risk and specific capital requirements 
for derivative and repo-style transaction exposures to central 
counterparties (CCP) to address concerns related to the 
interconnectedness and complexity of the derivatives markets.\27\ The 
proposed revisions provide incentives for banking organizations to 
clear derivatives and repo-style transactions through qualifying 
central counterparties (QCCP) to help promote market transparency and 
improve the ability of market participants to unwind their positions 
quickly and efficiently. The agencies have incorporated these 
provisions in the Standardized Approach NPR and the Advanced Approaches 
and Market Risk NPR.
---------------------------------------------------------------------------

    \26\ See, e.g., ``Basel III FAQs answered by the Basel 
Committee'' (July, October, December 2011), available at http://www.bis.org/list/press_releases/index.htm.
    \27\ The BCBS left unchanged the treatment of exposures to CCPs 
for settlement of cash transactions such as equities, fixed income, 
spot foreign exchange and spot commodities. See ``Capitalization of 
Banking Organization Exposures to Central Counterparties'' (December 
2010, revised November 2011) (CCP consultative release), available 
at http://www.bis.org/publ/bcbs206.pdf.
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II. Minimum Regulatory Capital Ratios, Additional Capital Requirements, 
and Overall Capital Adequacy

A. Minimum Risk-Based Capital Ratios and Other Regulatory Capital 
Provisions

    Consistent with Basel III, the agencies are proposing to require 
that banking organizations comply with the following minimum capital 
ratios: (1) A common equity tier 1 capital ratio of 4.5 percent; (2) a 
tier 1 capital ratio of 6 percent; (3) a total capital ratio of 8 
percent; and (4) a tier 1 capital to average consolidated assets of 4 
percent and, for advanced approaches banking organizations only, an 
additional requirement tier 1 capital to total leverage exposure ratio 
of 3 percent.\28\ As noted above, the common equity tier 1 capital 
ratio would be a new minimum requirement. It is designed to ensure that 
banking organizations hold high-quality regulatory capital that is 
available to absorb losses. The proposed capital ratios would apply to 
a banking organization on a consolidated basis.
---------------------------------------------------------------------------

    \28\ Advanced approaches banking organizations should refer to 
section 10 of the proposed rule text and to the Advanced Approaches 
and Market Risk NPR for a more detailed discussion of the applicable 
minimum capital ratios.
---------------------------------------------------------------------------

    Under this NPR, tier 1 capital would equal the sum of common equity 
tier 1 capital and additional tier 1 capital. Total capital would 
consist of three capital components: common equity tier 1, additional 
tier 1, and tier 2 capital. The definitions of each of these categories 
of regulatory capital are discussed below in section III of this 
preamble. To align the proposed regulatory capital requirements with 
the agencies' current PCA rules, this NPR also would incorporate the 
proposed revisions to the minimum capital requirements into the 
agencies' PCA framework, as further discussed in section II.E of this 
preamble.
    In addition, a banking organization would be subject to a capital 
conservation buffer in excess of the risk-based capital requirements 
that would impose limitations on its capital distributions and certain 
discretionary bonuses, as described in sections II.C and II.D of this 
preamble. Because the regulatory capital buffer would apply in addition 
to the regulatory minimum requirements, the restrictions on capital 
distributions and discretionary bonus payments associated with the 
regulatory capital buffer would not give rise to any applicable 
restrictions under section 38 of the Federal Deposit Insurance Act and 
the agencies' implementing PCA rules, which apply when an insured 
institution's capital levels drop below certain regulatory 
thresholds.\29\
---------------------------------------------------------------------------

    \29\ 12 U.S.C. 1831o; 12 CFR part 6, 12 CFR part 165 (OCC); 12 
CFR 208.45 (Board); 12 CFR 325.105, 12 CFR 390.455 (FDIC).
---------------------------------------------------------------------------

    As a prudential matter, the agencies have a long-established policy 
that banking organizations should hold capital commensurate with the 
level and nature of the risks to which they are exposed, which may 
entail holding capital significantly above the minimum requirements, 
depending on the nature of the banking organization's activities and 
risk profile. Section II.F of this preamble describes the requirement 
for overall capital adequacy of banking organizations and the 
supervisory assessment of an entity's capital adequacy.
    Furthermore, consistent with the agencies' authority under the 
current capital rules, section 10(d) of the proposal includes a 
reservation of authority that would allow a banking organization's 
primary federal supervisor to require a banking organization to hold a 
different amount of regulatory capital than otherwise would be required 
under the proposal, if the supervisor determines that the regulatory 
capital held by the banking organization is not commensurate with a 
banking organization's credit, market, operational, or other risks.

B. Leverage Ratio

1. Minimum Tier 1 Leverage Ratio
    Under the proposal, all banking organizations would remain subject 
to a 4 percent tier 1 leverage ratio, which would be calculated by 
dividing an organization's tier 1 capital by its average consolidated 
assets, minus amounts deducted from tier 1 capital. The numerator for 
this ratio would be a banking organization's tier 1 capital as defined 
in section 2 of the proposal. The denominator would be its average 
total on-balance sheet assets as reported on

[[Page 52802]]

the banking organization's regulatory report, net of amounts deducted 
from tier 1 capital.\30\
---------------------------------------------------------------------------

    \30\ Specifically, to determine average total on-balance sheet 
assets, bank holding companies and savings and loan holding 
companies would use the Consolidated Financial Statements for Bank 
Holding Companies (FR Y-9C); national banks, state member banks, 
state nonmember banks, and savings associations would use On-balance 
sheet Reports of Condition and Income (Call Report).
---------------------------------------------------------------------------

    In this NPR, the agencies are proposing to remove the tier 1 
leverage ratio exception for banking organizations with a supervisory 
composite rating of 1 that exists under the current leverage rules.\31\ 
This exception provides for a 3 percent tier 1 leverage measure for 
such institutions.\32\ The current exception would also be eliminated 
for bank holding companies with a supervisory composite rating of 1 and 
subject to the market risk rule. Accordingly, as proposed, all banking 
organizations would be subject to a 4 percent minimum tier 1 leverage 
ratio.
---------------------------------------------------------------------------

    \31\ Under the agencies' current rules, the minimum ratio of 
tier 1 capital to total assets for strong banking organizations 
(that is, rated composite ``1'' under the CAMELS system for state 
nonmember and national banks, ``1'' under UFIRS for state member 
banks, and ``1'' under RFI/CD for bank holding companies) not 
experiencing or anticipating significant growth is 3 percent. See 12 
CFR 3.6, 12 CFR 167.8 (OCC); 12 CFR 208.43, 12 CFR part 225, 
Appendix D (Board); 12 CFR 325.3, 12 CFR 390.467 (FDIC).
    \32\ See 12 CFR 3.6 (OCC); 12 CFR part 208, Appendix B and 12 
CFR part 225, Appendix D (Board); and 12 CFR part 325.3 (FDIC).
---------------------------------------------------------------------------

2. Supplementary Leverage Ratio for Advanced Approaches Banking 
Organizations
    Advanced approaches banking organizations would also be required to 
maintain the supplementary leverage ratio of tier 1 capital to total 
leverage exposure of 3 percent. The supplementary leverage ratio 
incorporates the Basel III definition of tier 1 capital as the 
numerator and uses a broader exposure base, including certain off-
balance sheet exposures (total leverage exposure), for the denominator.
    The agencies believe that the supplementary leverage ratio is most 
appropriate for advanced approaches banking organizations because these 
banking organizations tend to have more significant amounts of off-
balance sheet exposures that are not captured by the current leverage 
ratio. Applying the supplementary leverage ratio rather than the 
current tier 1 leverage ratio to other banking organizations would 
increase the complexity of their leverage ratio calculation, and in 
many cases could result in a reduced leverage capital requirement. The 
agencies believe that, along with the 5 percent ``well-capitalized'' 
PCA leverage threshold described in section II.E of this preamble, the 
proposed leverage requirements are, for the majority of banking 
organizations that are not subject to the advanced approaches rule, 
both more conservative and simpler than the supplementary leverage 
ratio.
    An advanced approaches banking organization would calculate the 
supplementary leverage ratio, including each of the ratio components, 
at the end of every month and then calculate a quarterly leverage ratio 
as the simple arithmetic mean of the three monthly leverage ratios over 
the reporting quarter. As proposed, total leverage exposure would equal 
the sum of the following exposures:
    (1) The balance sheet carrying value of all of the banking 
organization's on-balance sheet assets minus amounts deducted from tier 
1 capital;
    (2) The potential future exposure amount for each derivative 
contract to which the banking organization is a counterparty (or each 
single-product netting set for such transactions) determined in 
accordance with section 34 of the proposal;
    (3) 10 percent of the notional amount of unconditionally 
cancellable commitments made by the banking organization; and
    (4) The notional amount of all other off-balance sheet exposures of 
the banking organization (excluding securities lending, securities 
borrowing, reverse repurchase transactions, derivatives and 
unconditionally cancellable commitments).
    The BCBS continues to assess the Basel III leverage ratio, 
including through supervisory monitoring during a parallel run period 
in which the proposed design and calibration of the Basel III leverage 
ratio will be evaluated, and the impact of any differences in national 
accounting frameworks material to the definition of the leverage ratio 
will be considered. A final decision by the BCBS on the measure of 
exposure for certain transactions and calibration of the leverage ratio 
is not expected until closer to 2018.
    Due to these ongoing observations and international discussions on 
the most appropriate measurement of exposure for repo-style 
transactions, the agencies are proposing to maintain the current on-
balance sheet measurement of repo-style transactions for purposes of 
calculating total leverage exposure. Under this NPR, a banking 
organization would measure exposure as the value of repo-style 
transactions (including repurchase agreements, securities lending and 
borrowing transactions, and reverse repos) carried as an asset on the 
balance sheet, consistent with the measure of exposure used in the 
agencies' current leverage measure. The agencies are participating in 
international discussions and ongoing quantitative analysis of the 
exposure measure for repo-style transactions, and will consider 
modifying in the future the measurement of repo-style transactions in 
the calculation of total leverage exposure to reflect results of these 
international efforts.
    The agencies are proposing to apply the supplementary leverage 
ratio as a requirement for advanced approaches banking organizations 
beginning in 2018, consistent with Basel III. However, beginning on 
January 1, 2015, advanced approaches banking organizations would be 
required to calculate and report their supplementary leverage ratio.
    Question 2: The agencies solicit comments on all aspects of this 
proposal, including regulatory burden and competitive impact. Should 
all banking organizations, banking organizations with total 
consolidated assets above a certain threshold, or banking organizations 
with certain risk profiles (for example, concentrations in derivatives) 
be required to comply with the supplementary leverage ratio, and why? 
What are the advantages and disadvantages of the application of two 
leverage ratio requirements to advanced approaches banking 
organizations?
    Question 3: What modifications to the proposed supplementary 
leverage ratio should be considered and why? Are there alternative 
measures of exposure for repo-style transactions that should be 
considered by the agencies? What alternative measures should be used in 
cases in which the use of the current exposure method may overstate 
leverage (for example, in certain cases of calculating derivative 
exposure) or understate leverage (for example, in the case of credit 
protection sold)? The agencies request data and supplementary analysis 
that would support consideration of such alternative measures.
    Question 4: Given differences in international accounting, 
particularly the difference in how International Financial Reporting 
Standards and GAAP treat securities for securities lending, the 
agencies solicit comments on the adjustments that should be 
contemplated to mitigate or offset such differences.
    Question 5: The agencies solicit comments on the advantages and 
disadvantages of including off-balance sheet exposures in the 
supplementary leverage ratio. The agencies seek

[[Page 52803]]

detailed comments, with supporting data, on the proposed method of 
calculating exposures and estimates of burden, particularly for off-
balance sheet exposures.

C. Capital Conservation Buffer

    Consistent with Basel III, the proposal incorporates a capital 
conservation buffer that is designed to bolster the resilience of 
banking organizations throughout financial cycles. The buffer would 
provide incentives for banking organizations to hold sufficient capital 
to reduce the risk that their capital levels would fall below their 
minimum requirements during stressful conditions. The capital 
conservation buffer would be composed of common equity tier 1 capital 
and would be separate from the minimum risk-based capital requirements.
    As proposed, a banking organization's capital conservation buffer 
would be the lowest of the following measures: (1) The banking 
organization's common equity tier 1 capital ratio minus its minimum 
common equity tier 1 capital ratio; (2) the banking organization's tier 
1 capital ratio minus its minimum tier 1 capital ratio; and (3) the 
banking organization's total capital ratio minus its minimum total 
capital ratio.\33\ If the banking organization's common equity tier 1, 
tier 1 or total capital ratio were less than or equal to its minimum 
common equity tier 1, tier 1 or total capital ratio, respectively, the 
banking organization's capital conservation buffer would be zero. For 
example, if a banking organization's common equity tier 1, tier 1, and 
total capital ratios are 7.5, 9.0, and 10 percent, respectively, and 
the banking organization's minimum common equity tier 1, tier 1, and 
total capital ratio requirements are 4.5, 6, and 8, respectively, the 
banking organization's applicable capital conservation buffer would be 
2 percent for purposes of establishing a 60 percent maximum payout 
ratio under table 3.
---------------------------------------------------------------------------

    \33\ For purposes of the capital conservation buffer 
calculations, a banking organization would be required to use 
standardized total risk weighted assets if it is a standardized 
approach banking organization and it would be required to use 
advanced total risk weighted assets if it is an advanced approaches 
banking organization.
---------------------------------------------------------------------------

    Under the proposal, a banking organization would need to hold a 
capital conservation buffer in an amount greater than 2.5 percent of 
total risk-weighted assets (plus, for an advanced approaches banking 
organization, 100 percent of any applicable countercyclical capital 
buffer amount) to avoid being subject to limitations on capital 
distributions and discretionary bonus payments to executive officers, 
as defined under the proposal. The maximum payout ratio would be the 
percentage of eligible retained income that a banking organization 
would be allowed to pay out in the form of capital distributions and 
certain discretionary bonus payments during the current calendar 
quarter and would be determined by the amount of the capital 
conservation buffer held by the banking organization during the 
previous calendar quarter. Under the proposal, eligible retained income 
would be defined as a banking organization's net income (as reported in 
the banking organization's quarterly regulatory reports) for the four 
calendar quarters preceding the current calendar quarter, net of any 
capital distributions, certain discretionary bonus payments, and 
associated tax effects not already reflected in net income.
    A banking organization's maximum payout amount for the current 
calendar quarter would be equal to the banking organization's eligible 
retained income, multiplied by the applicable maximum payout ratio in 
accordance with table 3. A banking organization with a capital 
conservation buffer that is greater than 2.5 percent (plus, for an 
advanced approaches banking organization, 100 percent of any applicable 
countercyclical buffer) would not be subject to a maximum payout amount 
as a result of the application of this provision (but the agencies' 
authority to restrict capital distributions for other reasons remains 
undiminished).
    In a scenario where a banking organization's risk-based capital 
ratios fall below its minimum risk-based capital ratios plus 2.5 
percent of total risk-weighted assets, the maximum payout ratio would 
also decline, in accordance with table 3. A banking organization that 
becomes subject to a maximum payout ratio would remain subject to 
restrictions on capital distributions and certain discretionary bonus 
payments until it is able to build up its capital conservation buffer 
through retained earnings, raising additional capital, or reducing its 
risk-weighted assets. In addition, as a general matter, a banking 
organization would not be able to make capital distributions or certain 
discretionary bonus payments during the current calendar quarter if the 
banking organization's eligible retained income is negative and its 
capital conservation buffer is less than 2.5 percent as of the end of 
the previous quarter.
    As illustrated in table 3, the capital conservation buffer is 
divided into equal quartiles, each associated with increasingly 
stringent limitations on capital distributions and discretionary bonus 
payments to executive officers as the capital conservation buffer falls 
closer to zero percent. As described in more detail in the next 
section, each quartile, associated with a certain maximum payout ratio 
in table 3, would expand proportionately for advanced approaches 
banking organizations when the countercyclical capital buffer amount is 
greater than zero.
    The agencies propose to define a capital distribution as: (1) A 
reduction of tier 1 capital through the repurchase of a tier 1 capital 
instrument or by other means; (2) a reduction of tier 2 capital through 
the repurchase, or redemption prior to maturity, of a tier 2 capital 
instrument or by other means; (3) a dividend declaration on any tier 1 
capital instrument; (4) a dividend declaration or interest payment on 
any tier 2 capital instrument if such dividend declaration or interest 
payment may be temporarily or permanently suspended at the discretion 
of the banking organization; or (5) any similar transaction that the 
agencies determine to be in substance a distribution of capital. The 
proposed definition is similar in effect to the definition of capital 
distribution in the Board's rule requiring annual capital plan 
submissions for bank holding companies with $50 billion or more in 
total assets.\34\
---------------------------------------------------------------------------

    \34\ See 12 CFR 225.8.
---------------------------------------------------------------------------

    The agencies propose to define a discretionary bonus payment as a 
payment made to an executive officer of a banking organization or an 
individual with commensurate responsibilities within the organization, 
such as a head of a business line, where: (1) The banking organization 
retains discretion as to the fact of the payment and as to the amount 
of the payment until the discretionary bonus is paid to the executive 
officer; (2) the amount paid is determined by the banking organization 
without prior promise to, or agreement with, the executive officer; and 
(3) the executive officer has no contract right, express or implied, to 
the bonus payment.
    An executive officer would be defined as a person who holds the 
title or, without regard to title, salary, or compensation, performs 
the function of one or more of the following positions: president, 
chief executive officer, executive chairman, chief operating officer, 
chief financial officer, chief investment officer, chief legal officer, 
chief lending officer, chief risk officer, or head of a major business 
line, and other staff that the board of directors of the banking 
organization deems to have

[[Page 52804]]

equivalent responsibility.\35\ The purpose of limiting restrictions on 
discretionary bonus payments to executive officers is to focus these 
measures on the individuals within a banking organization who could 
expose the organization to the greatest risk. The agencies note that a 
banking organization may otherwise be subject to limitations on capital 
distributions under other laws or regulations.\36\
---------------------------------------------------------------------------

    \35\ See 76 FR 21170 (April 14, 2011).
    \36\ See 12 U.S.C. 56, 60, and 1831o(d)(1); 12 CFR 1467a(f); see 
also 12 CFR 225.8.
---------------------------------------------------------------------------

    Table 3 shows the relationship between the capital conservation 
buffer and the maximum payout ratio. The maximum dollar amount that a 
banking organization would be permitted to pay out in the form of 
capital distributions or discretionary bonus payments during the 
current calendar quarter would be equal to the maximum payout ratio 
multiplied by the banking organization's eligible retained income. The 
calculation of the maximum payout amount would be made as of the last 
day of the previous calendar quarter and any resulting restrictions 
would apply during the current calendar quarter.

                       Table 3--Capital Conservation Buffer and Maximum Payout Ratio \37\
----------------------------------------------------------------------------------------------------------------
 Capital conservation buffer  (as a percentage     Maximum payout ratio  (as a percentage of eligible retained
         of total risk-weighted assets)                                      income)
----------------------------------------------------------------------------------------------------------------
Greater than 2.5 percent.......................  No payout ratio limitation applies.
Less than or equal to 2.5 percent, and greater   60 percent.
 than 1.875 percent.
Less than or equal to 1.875 percent, and         40 percent.
 greater than 1.25 percent.
Less than or equal to 1.25 percent, and greater  20 percent.
 than 0.625 percent.
Less than or equal to 0.625 percent............  0 percent.
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \37\ Calculations in this table are based on the assumption that 
the countercyclical buffer amount is zero.
---------------------------------------------------------------------------

    For example, a banking organization with a capital conservation 
buffer between 1.875 and 2.5 percent (for example, a common equity tier 
1 capital ratio of 6.5 percent, a tier 1 capital ratio of 8 percent, or 
a total capital ratio of 10 percent) as of the end of the previous 
calendar quarter would be allowed to distribute no more than 60 percent 
of its eligible retained income in the form of capital distributions or 
discretionary bonus payments during the current calendar quarter. That 
is, the banking organization would need to conserve at least 40 percent 
of its eligible retained income during the current calendar quarter.
    A banking organization with a capital conservation buffer of less 
than or equal to 0.625 percent (for example, a banking organization 
with a common equity tier 1 capital ratio of 5.0 percent, a tier 1 
capital ratio of 6.5 percent, or a total capital ratio of 8.5 percent) 
as of the end of the previous calendar quarter would not be permitted 
to make any capital distributions or discretionary bonus payments 
during the current calendar quarter.
    In contrast, a banking organization with a capital conservation 
buffer of more than 2.5 percent (for example, a banking organization 
with a common equity tier 1 capital ratio of 7.5 percent, a tier 1 
capital ratio of 9.0 percent, and a total capital ratio of 11.0 
percent) as of the end of the previous calendar quarter would not be 
subject to restrictions on the amount of capital distributions and 
discretionary bonus payments that could be made during the current 
calendar quarter. Consistent with the agencies' current practice with 
respect to regulatory restrictions on dividend payments and other 
capital distributions, each agency would retain its authority to permit 
a banking organization supervised by that agency to make a capital 
distribution or a discretionary bonus payment, if the agency determines 
that the capital distribution or discretionary bonus payment would not 
be contrary to the purposes of the capital conservation buffer or the 
safety and soundness of the banking institution. In making such a 
determination, the agency would consider the nature and extent of the 
request and the particular circumstances giving rise to the request.
    The agencies are proposing that banking organizations that are not 
subject to the advanced approaches rule would calculate their capital 
conservation buffer using total risk-weighted assets as calculated by 
all banking organizations, and that banking organizations subject to 
the advanced approaches rule would calculate the buffer using advanced 
approaches total risk-weighted assets. Under the proposed approach, 
internationally active U.S. banking organizations using the advanced 
approaches would face capital conservation buffers determined in a 
manner comparable to those of their foreign competitors. Depending on 
the difference in risk-weighted assets calculated under the two 
approaches, capital distributions and bonus restrictions applied to an 
advanced approaches banking organization could be more or less 
stringent than if its capital conservation buffer were based on risk-
weighted assets as calculated by all banking organizations.
    Question 6: The agencies seek comment on all aspects of the 
proposed capital buffer framework, including issues of domestic and 
international competitive equity, and the adequacy of the proposed 
buffer to provide incentives for banking organizations to hold 
sufficient capital to withstand a stress event and still remain above 
regulatory minimum capital levels. What are the advantages and 
disadvantages of requiring advanced approaches banking organizations to 
calculate their capital buffers using total risk-weighted assets that 
are the greater of standardized total risk-weighted assets and advanced 
total risk-weighted assets? What is the potential effect of the 
proposal on banking organizations' processes for planning and executing 
capital distributions and utilization of discretionary bonus payments 
to retain key staff? What modifications, if any, should the agencies 
consider?
    Question 7: The agencies solicit comments on the scope of the 
definition of executive officer for purposes of the limitations on 
discretionary bonus payments under the proposal. Is the scope too broad 
or too narrow? Should other categories of employees who could expose 
the institution to material risk be included within the scope of 
employees whose discretionary bonuses could be subject to the 
restriction? If so, how should such a class of employees be defined? 
What are the potential implications for a banking organization of 
restricting discretionary bonus payments for executive officers or for 
broader classes of employees? Please

[[Page 52805]]

provide data and analysis to support your views.
    Question 8: What are the pros and cons of the proposed definition 
for eligible retained income in the context of the proposed quarterly 
limitations on capital distributions and discretionary bonus payments?
    Question 9: What would be the impact, if any, in terms of the cost 
of raising new capital, of not allowing a banking organization that is 
subject to a maximum payout ratio of zero percent to make a penny 
dividend to common stockholders? Please provide data to support any 
responses.

D. Countercyclical Capital Buffer

    Under Basel III, the countercyclical capital buffer is designed to 
take into account the macro-financial environment in which banking 
organizations function and to protect the banking system from the 
systemic vulnerabilities that may build-up during periods of excessive 
credit growth, then potentially unwind in a disorderly way that may 
cause disruptions to financial institutions and ultimately economic 
activity. As proposed and consistent with Basel III, the 
countercyclical capital buffer would serve as an extension of the 
capital conservation buffer.
    The agencies propose to apply the countercyclical capital buffer 
only to advanced approaches banking organizations, because large 
banking organizations generally are more interconnected with other 
institutions in the financial system. Therefore, the marginal benefits 
to financial stability from a countercyclical buffer function should be 
greater with respect to such institutions. Application of the 
countercyclical buffer to advanced approaches banking organizations 
also reflects the fact that making cyclical adjustments to capital 
requirements is costly for institutions to implement and the marginal 
costs are higher for smaller institutions.
    The countercyclical capital buffer aims to protect the banking 
system and reduce systemic vulnerabilities in two ways. First, the 
accumulation of a capital buffer during an expansionary phase could 
increase the resilience of the banking system to declines in asset 
prices and consequent losses that may occur when the credit conditions 
weaken. Specifically, when the credit cycle turns following a period of 
excessive credit growth, accumulated capital buffers would act to 
absorb the above-normal losses that a banking organization would likely 
face. Consequently, even after these losses are realized, banking 
organizations would remain healthy and able to access funding, meet 
obligations, and continue to serve as credit intermediaries. 
Countercyclical capital buffers may also reduce systemic 
vulnerabilities and protect the banking system by mitigating excessive 
credit growth and increases in asset prices that are not supported by 
fundamental factors. By increasing the amount of capital required for 
further credit extensions, countercyclical capital buffers may limit 
excessive credit extension.
    Consistent with Basel III, the agencies propose a countercyclical 
capital buffer that would augment the capital conservation buffer under 
certain circumstances, upon a determination by the agencies.
    The countercyclical capital buffer amount in the U.S. would 
initially be set to zero, but it could increase if the agencies 
determine that there is excessive credit in the markets, possibly 
leading to subsequent wide-spread market failures.\38\ The agencies 
expect to consider a range of macroeconomic, financial, and supervisory 
information indicating an increase in systemic risk including, but not 
limited to, the ratio of credit to gross domestic product, a variety of 
asset prices, other factors indicative of relative credit and liquidity 
expansion or contraction, funding spreads, credit condition surveys, 
indices based on credit default swap spreads, options implied 
volatility, and measures of systemic risk. The agencies anticipate 
making such determinations jointly. Because the countercyclical capital 
buffer amount would be linked to the condition of the overall U.S. 
financial system and not the characteristics of an individual banking 
organization, the agencies expect that the countercyclical capital 
buffer amount would be the same at the depository institution and 
holding company levels.
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    \38\ The proposed operation of the countercyclical capital 
buffer is also consistent with section 616(c) of the Dodd-Frank Act. 
See 12 U.S.C. 3907(a)(1).
---------------------------------------------------------------------------

    To provide banking organizations with time to adjust to any 
changes, the agencies expect to announce an increase in the 
countercyclical capital buffer amount up to12 months prior to 
implementation. If the agencies determine that a more immediate 
implementation would be necessary based on economic conditions, the 
agencies may announce implementation of a countercyclical capital 
buffer in less than 12 months. The agencies would make their 
determination and announcement in accordance with any applicable legal 
requirements. The agencies would follow the same procedures in 
adjusting the countercyclical capital buffer applicable for exposures 
located in foreign jurisdictions.
    A decrease in the countercyclical capital buffer amount would 
become effective the day following announcement or the earliest date 
permitted by applicable law or regulation. In addition, the 
countercyclical capital buffer amount would return to zero percent 12 
months after its effective date, unless an agency announces a decision 
to maintain the adjusted countercyclical capital buffer amount or 
adjust it again before the expiration of the 12-month period.
    In the United States, the countercyclical capital buffer would 
augment the capital conservation buffer by up to 2.5 percent of a 
banking organization's total risk-weighted assets. For other 
jurisdictions, an advanced approaches banking organization would 
determine its countercyclical capital buffer amount by calculating the 
weighted average of the countercyclical capital buffer amounts 
established for the national jurisdictions where the banking 
organization has private sector credit exposures, as defined below in 
this section. The contributing weight assigned to a jurisdiction's 
countercyclical capital buffer amount would be calculated by dividing 
the total risk-weighted assets for the banking organization's private 
sector credit exposures located in the jurisdiction by the total risk-
weighted assets for all of the banking organization's private sector 
credit exposures.\39\
---------------------------------------------------------------------------

    \39\ As described in the discussion of the capital conservation 
buffer, an advanced approaches banking organization would calculate 
its total risk-weighted assets using the advanced approaches rules 
for purposes of determining the capital conservation buffer amount. 
An advanced approaches banking organizations may also be subject to 
the capital plan rule and its stress testing provisions, which may 
have a separate effect on a banking organization's capital 
distributions. See 12 CFR 225.8.
---------------------------------------------------------------------------

    As proposed, a private sector credit exposure would be defined as 
an exposure to a company or an individual that is included in credit 
risk-weighted assets, not including an exposure to a sovereign, the 
Bank for International Settlements, the European Central Bank, the 
European Commission, the International Monetary Fund, a multilateral 
development bank (MDB), a public sector entity (PSE), or a government 
sponsored entity (GSE).
    The geographic location of a private sector credit exposure (that 
is not a securitization exposure) would be the national jurisdiction 
where the borrower is located (that is, where the borrower

[[Page 52806]]

is incorporated, chartered, or similarly established or, if it is an 
individual, where the borrower resides). If, however, the decision to 
issue the private sector credit exposure is based primarily on the 
creditworthiness of the protection provider, the location of the non-
securitization exposure would be the location of the protection 
provider. The location of a securitization exposure would be the 
location of the borrowers of the underlying exposures. If the borrowers 
on the underlying exposures are located in multiple jurisdictions, the 
location of a securitization exposure would be the location of the 
borrowers of the underlying exposures in one jurisdiction with the 
largest proportion of the aggregate unpaid principal balance of the 
underlying exposures.
    Table 4 illustrates how an advanced approaches banking organization 
would calculate the weighted average countercyclical capital buffer. In 
the following example, the countercyclical capital buffer established 
in the various jurisdictions in which the banking organization has 
private sector credit exposures is reported in column A. Column B 
contains the banking organization's risk-weighted asset amounts for the 
private sector credit exposures in each jurisdiction. Column C shows 
the contributing weight for each countercyclical buffer amount, which 
is calculated by dividing each of the rows in column B by the total for 
column B. Column D shows the contributing weight applied to each 
countercyclical capital buffer amount, calculated as the product of the 
corresponding contributing weight (column C) and the countercyclical 
capital buffer set by each jurisdiction's national supervisor (column 
A). The sum of the rows in column D shows the banking organization's 
weighted average countercyclical capital buffer, which is 1.4 percent 
of risk-weighted assets.

              Table 4--Example of Weighted Average Countercyclical Capital Buffer Calculation for Advanced Approaches Banking Organizations
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                          (A)                      (B)                      (C)                      (D)
                                                       Countercyclical buffer   Banking organization's      Contributing weight      Contributing weight
                                                       amount set by national     risk-weighted assets       (column B/column B          applied to each
                                                                   supervisor        (RWA) for private                   total)  countercyclical capital
                                                                    (percent)  sector credit exposures                                     buffer amount
                                                                                                  ($b)                             (column A * column C)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-U.S. jurisdiction 1.............................                      2.0                      250                     0.29                      0.6
Non-U.S. jurisdiction 2.............................                      1.5                      100                     0.12                      0.2
U.S.................................................                        1                      500                     0.59                      0.6
                                                     ---------------------------------------------------------------------------------------------------
    Total...........................................  .......................                      850                     1.00                      1.4
--------------------------------------------------------------------------------------------------------------------------------------------------------

    A banking organization's maximum payout ratio for purposes of its 
capital conservation buffer would vary depending on its countercyclical 
buffer amount. For instance, if its countercyclical capital buffer 
amount is equal to zero percent of total risk-weighted assets, the 
banking organization that held only U.S. credit exposures would need to 
hold a combined capital conservation buffer of at least 2.5 percent to 
avoid restrictions on its capital distributions and certain 
discretionary bonus payments. However, if its countercyclical capital 
buffer amount is equal to 2.5 percent of total risk-weighted assets, 
the banking organization whose assets consist of only U.S. credit 
exposures would need to hold a combined capital conservation and 
countercyclical buffer of at least 5 percent to avoid restrictions on 
its capital distributions and discretionary bonus payments.
    Question 10: The agencies solicit comment on potential inputs used 
in determining whether excessive credit growth is occurring and whether 
a formula-based approach might be useful in determining the appropriate 
level of the countercyclical capital buffer. What additional factors, 
if any, should the agencies consider when determining the 
countercyclical capital buffer amount? What are the pros and cons of 
using a formula-based approach and what factors might be incorporated 
in the formula to determine the level of the countercyclical capital 
buffer amount?
    Question 11: The agencies recognize that a banking organization's 
risk-weighted assets for private sector credit exposures should include 
relevant covered positions under the market risk capital rule and 
solicit comment regarding appropriate methodologies for incorporating 
these positions; specifically, what position-specific or portfolio-
specific methodologies should be used for covered positions with 
specific risk and particularly those for which a banking organization 
uses models to measure specific risk?
    Question 12: The agencies solicit comment on the appropriateness of 
the proposed 12-month prior notification period to adjust to a newly 
implemented or adjusted countercyclical capital buffer amount.

E. Prompt Corrective Action Requirements

    Section 38 of the Federal Deposit Insurance Act directs the federal 
banking agencies to take prompt corrective action (PCA) to resolve the 
problems of insured depository institutions at the least cost to the 
Deposit Insurance Fund.\40\ To facilitate this purpose, the agencies 
have established five regulatory capital categories in the current PCA 
regulations that include capital thresholds for the leverage ratio, 
tier 1 risk-based capital ratio, and the total risk-based capital ratio 
for insured depository institutions. These five PCA categories under 
section 38 of the Act and the PCA regulations are: ``Well 
capitalized,'' ``adequately capitalized,'' ``undercapitalized,'' 
``significantly undercapitalized,'' and ``critically 
undercapitalized.'' Insured depository institutions that fail to meet 
these capital measures are subject to increasingly strict limits on 
their activities, including their ability to make capital 
distributions, pay management fees, grow their balance sheet, and take 
other actions.\41\ Insured depository institutions are expected to be 
closed within 90 days of becoming ``critically undercapitalized,'' 
unless their primary federal regulator takes such other action as the 
agency determines, with the concurrence of the

[[Page 52807]]

FDIC, would better achieve the purpose of PCA.\42\
---------------------------------------------------------------------------

    \40\ 12 U.S.C. 1831o.
    \41\ 12 U.S.C. 1831o(e)-(i). See 12 CFR part 6 (OCC); 12 CFR 
part 208, subpart D (Board); 12 CFR part 325, subpart B (FDIC).
    \42\ 12 U.S.C. 1831o(g)(3).
---------------------------------------------------------------------------

    All insured depository institutions, regardless of total asset size 
or foreign exposure, are required to compute PCA capital levels using 
the agencies' general risk-based capital rules, as supplemented by the 
market risk capital rule. Under this NPR, the agencies are proposing to 
augment the PCA capital categories by introducing a common equity tier 
1 capital measure for four of the five PCA categories (excluding the 
critically undercapitalized PCA category).\43\ In addition, the 
agencies are proposing to amend the current PCA leverage measure to 
include in the leverage measure for the ``adequately capitalized'' and 
``undercapitalized'' capital categories for advanced approaches 
depository institutions an additional leverage ratio based on the 
leverage ratio in Basel III. All banking organizations would continue 
to be subject to leverage measure thresholds using the current tier 1, 
or ``standard'' leverage ratio in the form of tier 1 capital to total 
assets. In addition, the agencies are proposing to revise the three 
current capital measures for the five PCA categories to reflect the 
changes to the definition of capital, as provided in the proposed 
revisions to the agencies' PCA regulations.
---------------------------------------------------------------------------

    \43\ See 12 U.S.C. 1831o(c)(1)(B)(i).
---------------------------------------------------------------------------

    The proposed changes to the current minimum PCA thresholds and the 
introduction of a new common equity tier 1 capital measure would take 
effect January 1, 2015. Consistent with transition provisions in Basel 
III, the proposed amendments to the current PCA leverage measure for 
advanced approaches depository institutions would take effect on 
January 1, 2018. In contrast, changes to the definitions of the 
individual capital components that are used to calculate the relevant 
capital measures under PCA would coincide with the transition 
arrangements discussed in section V of the preamble, or with the 
transition provisions of other capital regulations, as applicable. 
Thus, the changes to these definitions, including any deductions or 
modifications to capital, automatically would flow through to the 
definitions in the PCA framework.
    Table 5 sets forth the current risk-based and leverage capital 
thresholds for each of the PCA capital categories for insured 
depository institutions.

                                           Table 5--Current PCA Levels
----------------------------------------------------------------------------------------------------------------
                                      Total Risk-                         Leverage
                                     Based Capital      Tier 1 RBC    measure (tier 1
            Requirement              (RBC) measure   measure (tier 1     (standard)         PCA requirements
                                       (total RBC      RBC ratio--    leverage ratio--
                                    ratio--percent)      percent)         percent)
----------------------------------------------------------------------------------------------------------------
Well Capitalized..................             >=10              >=6              >=5  None.
Adequately Capitalized............              >=8              >=4     \44\ >=4 (or  May limit nonbanking
                                                                                 >=3)   activities at DI's FHC
                                                                                        and includes limits on
                                                                                        brokered deposits.
Undercapitalized..................               <8               <4       <4 (or <3)  Includes adequately
                                                                                        capitalized
                                                                                        restrictions, and also
                                                                                        includes restrictions on
                                                                                        asset growth; dividends;
                                                                                        requires a capital plan.
Significantly undercapitalized....               <6               <3               <3  Includes undercapitalized
                                                                                        restrictions, and also
                                                                                        includes restrictions on
                                                                                        sub-debt payments.
                                   ---------------------------------------------------
Critically undercapitalized.......         Tangible Equity to Total Assets <=2         Generally receivership/
                                                                                        conservatorship within
                                                                                        90 days.
----------------------------------------------------------------------------------------------------------------

     
---------------------------------------------------------------------------

    \44\ The minimum ratio of tier 1 capital to total assets for 
strong depository institutions (rated composite ``1'' under the 
CAMELS system and not experiencing or anticipating significant 
growth) is 3 percent.
---------------------------------------------------------------------------

    Table 6 sets forth the proposed risk-based and leverage capital 
thresholds for each of the PCA capital categories for insured 
depository institutions that are not advanced approaches banks. For 
each PCA category except critically undercapitalized, an insured 
depository institution would be required to meet a minimum common 
equity tier 1 capital ratio, in addition to a minimum tier 1 risk-based 
capital ratio, total risk-based capital ratio, and leverage ratio.

                      Table 6--Proposed PCA Levels for Insured Depository Institutions Not Subject to the Advanced Approaches Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                     Common equity
                                                     Total RBC        Tier 1 RBC       tier 1 RBC        Leverage
                                                   measure (total  measure (tier 1  measure (common      Measure
                   Requirement                      RBC ratio--      RBC ratio--     equity tier 1      (leverage              PCA requirements
                                                      percent)         percent)        RBC ratio     ratio--percent)
                                                                                       (percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Well Capitalized................................             >=10              >=8            >=6.5              >=5  Unchanged from current rules *.
Adequately Capitalized..........................              >=8              >=6            >=4.5              >=4   Do.
Undercapitalized................................               <8               <6             <4.5               <4   Do.
Significantly undercapitalized..................               <6               <4               <3               <3   Do.
                                                 --------------------------------------------------------------------
Critically undercapitalized.....................      Tangible Equity (defined as tier 1 capital plus non-tier 1       Do.
                                                            perpetual preferred stock) to Total Assets <=2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Additional restrictions on capital distributions that are not reflected in the agencies' proposed revisions to the PCA regulations are described in
  section II.C of this preamble.


[[Page 52808]]

    To be well capitalized, an insured depository institution would be 
required to maintain a total risk-based capital ratio equal to or 
greater than 10 percent; a tier 1 capital ratio equal to or greater 
than 8 percent; a common equity tier 1 capital ratio equal to or 
greater than 6.5 percent; and a leverage ratio equal to or greater than 
5 percent. An adequately capitalized depository institution would be 
required to maintain a total risk-based capital ratio equal to or 
greater than 8 percent; a tier 1 capital ratio equal to or greater than 
6 percent; common equity tier 1 capital ratio equal to or greater than 
4.5 percent; and a leverage ratio equal to or greater than 4 
percent.\45\
---------------------------------------------------------------------------

    \45\ An insured depository institution is considered adequately 
capitalized if it meets the qualifications for the adequately 
capitalized capital category and does not qualify as well 
capitalized.
---------------------------------------------------------------------------

    An insured depository institution would be considered 
undercapitalized under the proposal if its total capital ratio were 
less than 8 percent, or if its tier 1 capital ratio were less than 6 
percent, if its common equity tier 1 ratio were less than 4.5 percent, 
or if its leverage ratio were less than 4 percent. If an institution's 
tier 1 capital ratio were less than 4 percent, or if its common equity 
tier 1 ratio were less than 3 percent, it would be considered 
significantly undercapitalized. The other numerical capital ratio 
thresholds for being significantly undercapitalized would be 
unchanged.\46\
---------------------------------------------------------------------------

    \46\ Under current PCA standards, in order to qualify as well 
capitalized, an insured depository institution must not be subject 
to any written agreement, order, capital directive, or prompt 
corrective action directive issued by the Board pursuant to section 
8 of the Federal Deposit Insurance Act, the International Lending 
Supervision Act of 1983, or section 38 of the Federal Deposit 
Insurance Act, or any regulation thereunder, to meet a maintain a 
specific capital level for any capital measure. See 12 CFR 
6.4(b)(1)(iv) (OCC); 12 CFR 208.43(b)(1)(iv) (Board); 12 CFR 
325.103(b)(1)(iv) (FDIC). The agencies are not proposing any changes 
to this requirement.
---------------------------------------------------------------------------

    Table 7 sets forth the proposed risk-based and leverage thresholds 
for advanced approaches depository institutions. As indicated in the 
table, in addition to the PCA requirements and categories described 
above, the leverage measure for advanced approaches depository 
institutions in the adequately capitalized and undercapitalized PCA 
capital categories would include a supplementary leverage ratio based 
on the Basel III leverage ratio.

                        Table 7--Proposed PCA Levels for Insured Depository Institutions Subject to the Advanced Approaches Rule
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                         Common Equity               Leverage measure
                                         Total RBC        Tier 1 RBC       tier 1 RBC   -----------------------------------------
                                       measure (total  measure (tier 1  measure (common
             Requirement                RBC ratio--      RBC ratio--     equity tier 1    Leverage ratio  Supplementary leverage     PCA requirements
                                          percent)         percent)        RBC ratio        (percent)         ratio (percent)
                                                                            percent)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Well Capitalized....................             >=10              >=8            >=6.5              >=5  Not applicable........  Unchanged from current
                                                                                                                                   rule *.
Adequately Capitalized..............              >=8              >=6            >=4.5              >=4  >=3...................   Do.
Undercapitalized....................               <8               <6             <4.5               <4  <3....................   Do.
Significantly undercapitalized......               <6               <4               <3               <3  Not applicable........   Do.
                                     --------------------------------------------------------------------
Critically undercapitalized.........      Tangible Equity (defined as tier 1 capital plus non-tier 1      Not applicable........   Do.
                                               perpetual preferred stock) to Total Assets [lE]2
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Additional restrictions on capital distributions that are not reflected in the agencies' proposed revisions to the PCA regulations are described in
  section II.C of this preamble.

    As discussed above, the agencies believe that the supplementary 
leverage ratio is an important measure of an advanced approaches 
depository institution's ability to support its on-and off-balance 
sheet exposures, and advanced approaches institutions tend to have 
significant amounts of off-balance sheet exposures that are not 
captured by the current leverage ratio. Consistent with other minimum 
ratio requirements, the agencies propose that the minimum requirement 
for the supplementary leverage ratio in section 10 of the proposal 
would be the minimum supplementary leverage ratio a banking 
organization would need to maintain in order to be adequately 
capitalized. With respect to the other PCA categories (other than 
critically undercapitalized), the agencies are proposing ranges of 
minimum thresholds for comment. The agencies intend to specify the 
minimum threshold for each of those categories when the proposed PCA 
requirements are finalized.
    Under the proposed PCA framework, for each measure other than the 
leverage measure, an advanced approaches depository institution would 
be well capitalized, adequately capitalized, undercapitalized, 
significantly undercapitalized, or critically undercapitalized on the 
same basis as all other insured depository institutions. An advanced 
approaches bank would also be subject to the same thresholds with 
respect to the leverage ratio on the same basis as other insured 
depository institutions. In addition, with respect to the supplementary 
leverage ratio, in order to be adequately capitalized, an advanced 
approaches depository institution would be required to maintain a 
supplementary leverage ratio of greater than or equal to 3 percent. An 
advanced approaches depository institution would be undercapitalized if 
its supplementary leverage ratio were less than 3 percent.
    Question 13: The agencies seek comment regarding the proposed 
incorporation of the supplementary leverage ratio into the PCA 
framework, as well as the proposed ranges of PCA categories for the 
supplementary leverage ratio. Within the proposed ranges, what is the 
appropriate percentage for each PCA category? Please provide data to 
support your answer.
    As discussed in section II of this preamble, the current PCA 
framework permits an insured depository institution that is rated 
composite 1 under the CAMELS rating system and not experiencing or 
anticipating significant growth to maintain a 3 percent ratio of tier 1 
capital to average total consolidated assets (leverage ratio) rather 
than the 4.0 percent minimum

[[Page 52809]]

leverage ratio that is otherwise required for an institution to be 
adequately capitalized under PCA. The agencies believe that it would be 
appropriate for all insured depository institutions, regardless of 
their CAMELS rating, to meet the same minimum leverage ratio 
requirements. Accordingly, the agencies propose to eliminate the 3 
percent leverage ratio requirement for insured depository institutions 
with composite 1 CAMELS ratings.
    The proposal would increase some of the existing PCA capital 
requirements while maintaining the structure of the current PCA 
framework. For example, similar to the current PCA requirements, the 
risk-based capital ratios for well capitalized banking organizations 
would be two percentage points higher than the ratios for adequately 
capitalized banking organizations. The tier 1 leverage ratio for well 
capitalized banking organizations would be one percentage point higher 
than for adequately capitalized banking organizations. While the PCA 
levels do not explicitly incorporate the capital conservation buffer, 
the agencies believe that the PCA and capital conservation buffer 
frameworks will complement each other to ensure that banking 
organizations hold an adequate amount of common equity tier 1 capital.
    The determination of whether an insured depository institution is 
critically undercapitalized for PCA purposes is based on its ratio of 
tangible equity to total assets. This is a statutory requirement within 
the PCA framework, and the experience of the recent financial crisis 
has confirmed that tangible equity is of critical importance in 
assessing the viability of an insured depository institution. Tangible 
equity for PCA purposes is currently defined as including core capital 
elements, which consist of (1) Common stock holder's equity, (2) 
qualifying noncumulative perpetual preferred stock (including related 
surplus), and (3) minority interest in the equity accounts of 
consolidated subsidiaries; plus outstanding cumulative preferred 
perpetual stock; minus all intangible assets except mortgage servicing 
rights that are included in tier 1 capital. The current PCA definition 
of tangible equity does not address the treatment of DTAs in 
determining whether an insured depository institution is critically 
undercapitalized.
    The agencies propose to clarify the calculation of the capital 
measures for the critically undercapitalized PCA category by revising 
the definition of tangible equity to consist of tier 1 capital, plus 
outstanding perpetual preferred stock (including related surplus) not 
included in tier 1 capital. The revised definition would more 
appropriately align the calculation of tangible equity with the 
calculation of tier 1 capital generally for regulatory capital 
requirements. Assets included in a banking organization's equity 
account under GAAP, such as DTAs, would be included in tangible equity 
only to the extent that they are included in tier 1 capital. This 
modification should promote consistency and provide for clearer 
boundaries across and between the various PCA categories. In connection 
with this modification to the definition of tangible equity, the 
agencies propose to retain the current critically undercapitalized 
capital category threshold for insured depository institutions of less 
than 2 percent tangible equity to total assets. Based on the proposed 
new definition of tier 1 capital, the agencies believe the proposed 
critically undercapitalized threshold is at least as stringent as the 
agencies' current approach.
    Question 14: The agencies solicit comment on the proposed 
regulatory capital requirements in the PCA framework, the introduction 
of a common equity tier 1 ratio as a new capital measure for purposes 
of PCA, and the proposed PCA thresholds for each PCA category.
    In addition to the changes described in this section, the OCC is 
proposing the following amendments to 12 CFR part 6 to integrate the 
rules governing national banks and federal savings associations. Under 
the proposal, part 6 would be applicable to federal savings 
associations. The OCC also would make various non-substantive, 
technical amendments to part 6. In addition, the OCC proposes to 
rescind the current PCA rules in part 165 governing federal savings 
associations, with the exception of sections 165.8, Procedures for 
reclassifying a federal savings association based on criteria other 
than capital, and 165.9, Order to dismiss a director or senior 
executive officer; and to make non-substantive, technical amendments to 
sections 165.8 and 165.9. Any substantive issues regarding sections 
165.8 and 165.9 will be addressed as part of a separate integration 
rulemaking.

F. Supervisory Assessment of Overall Capital Adequacy

    Capital helps to ensure that individual banking organizations can 
continue to serve as credit intermediaries even during times of stress, 
thereby promoting the safety and soundness of the overall U.S. banking 
system. The agencies' current capital rules indicate that the capital 
requirements are minimum standards based on broad credit-risk 
considerations. The risk-based capital ratios do not explicitly take 
account of the quality of individual asset portfolios or the range of 
other types of risk to which banking organizations may be exposed, such 
as interest-rate, liquidity, market, or operational risks.
    A banking organization is generally expected to have internal 
processes for assessing capital adequacy that reflect a full 
understanding of its risks and to ensure that it holds capital 
corresponding to those risks to maintain overall capital adequacy.\47\ 
Accordingly, a supervisory assessment of capital adequacy must take 
account of the internal processes for capital adequacy, as well as 
risks and other factors that can affect a banking organization's 
financial condition, including, for example, the level and severity of 
problem assets and its exposure to operational and interest rate risk. 
For this reason, a supervisory assessment of capital adequacy may 
differ significantly from conclusions that might be drawn solely from 
the level of a banking organization's risk-based capital ratios.
---------------------------------------------------------------------------

    \47\ The Basel framework incorporates similar requirements under 
Pillar 2 of Basel II.
---------------------------------------------------------------------------

    In light of these considerations, as a prudential matter, a banking 
organization is generally expected to operate with capital positions 
well above the minimum risk-based ratios and to hold capital 
commensurate with the level and nature of the risks to which it is 
exposed, which may entail holding capital significantly above the 
minimum requirement. For example, banking organizations contemplating 
significant expansion proposals are expected to maintain strong capital 
levels substantially above the minimum ratios and should not allow 
significant diminution of financial strength below these strong levels 
to fund their expansion plans. Banking organizations with high levels 
of risk are also expected to operate even further above minimum 
standards. In addition to evaluating the appropriateness of a banking 
organization's capital level given its overall risk profile, the 
supervisory assessment takes into account the quality and trends in a 
banking organization's capital composition, including the share of 
common and non-common-equity capital elements.
    Section 10(d) of the proposal would maintain and reinforce these 
supervisory expectations by requiring that a banking organization 
maintain capital commensurate with the level

[[Page 52810]]

and nature of all risks to which it is exposed and that a banking 
organization have a process for assessing its overall capital adequacy 
in relation to its risk profile, as well as a comprehensive strategy 
for maintaining an appropriate level of capital.
    The supervisory evaluation of a banking organization's capital 
adequacy, including compliance with section 10(d), may include such 
factors as whether the banking organization is newly chartered, 
entering new activities, or introducing new products. The assessment 
would also consider whether a banking organization is receiving special 
supervisory attention, has or is expected to have losses resulting in 
capital inadequacy, has significant exposure due to risks from 
concentrations in credit or nontraditional activities, or has 
significant exposure to interest rate risk, operational risk, or could 
be adversely affected by the activities or condition of a banking 
organization's holding company.
    In addition, a banking organization should have an appropriately 
rigorous process for assessing its overall capital adequacy in relation 
to its risk profile and a comprehensive strategy for maintaining an 
appropriate level of capital, consistent with the longstanding approach 
employed by the agencies in their supervision of banking organizations. 
Supervisors also would evaluate the comprehensiveness and effectiveness 
of a banking organization's capital planning in light of its activities 
and capital levels. An effective capital planning process would require 
a banking organization to assess the risks to which it is exposed and 
its processes for managing and mitigating those risks, evaluate its 
capital adequacy relative to its risks, and consider potential impact 
on its earnings and capital base from current and prospective economic 
conditions.\48\
---------------------------------------------------------------------------

    \48\ See, for example, SR 09-4, Applying Supervisory Guidance 
and Regulations on the Payment of Dividends, Stock Redemptions, and 
Stock Repurchases at Bank Holding Companies (Board).
---------------------------------------------------------------------------

    While the elements of supervisory review of capital adequacy would 
be similar across banking organizations, evaluation of the level of 
sophistication of an individual banking organization's capital adequacy 
process would be commensurate with the banking organization's size, 
sophistication, and risk profile, similar to the current supervisory 
practice.

G. Tangible Capital Requirement for Federal Savings Associations

    As part of the OCC's overall effort to integrate the regulatory 
requirements for national banks and federal savings associations, the 
OCC is proposing to include a tangible capital requirement for Federal 
savings associations in this NPR.\49\ Under section 5(t)(2)(B) of the 
Home Owners' Loan Act (HOLA),\50\ federal savings associations are 
required to maintain tangible capital in an amount not less than 1.5 
percent of adjusted total assets.\51\ This statutory requirement is 
implemented in the capital rules applicable to federal savings 
associations at 12 CFR 167.9.\52\ Under that rule, tangible capital is 
defined differently from other capital measures, such as tangible 
equity in 12 CFR part 165.
---------------------------------------------------------------------------

    \49\ Under Title III of the Dodd-Frank Act, the OCC assumed all 
functions of the Office of Thrift Supervision (OTS) and the Director 
of the OTS relating to Federal savings associations. As a result, 
the OCC has responsibility for the ongoing supervision, examination 
and regulation of Federal savings associations as of the transfer 
date of July 21, 2011. The Act also transfers to the OCC the 
rulemaking authority of the OTS relating to all savings 
associations, both state and Federal for certain rules. Section 
312(b)(2)(B)(i) (to be codified 12 U.S.C. 5412(b)(2)(B)(i)). The 
FDIC has rulemaking authority for the capital and PCA rules pursuant 
to section 38 of the FDI Act (12 U.S.C. 1831n) and section 
5(t)(1)(A) of the Home Owners' Loan Act (12 U.S.C.1464(t)(1)(A)).
    \50\ 12 U.S.C. 1464(t).
    \51\ ``Tangible capital'' is defined in section 5(t)(9)(B) to 
mean ``core capital minus any intangible assets (as intangible 
assets are defined by the Comptroller of the Currency for national 
banks.)'' Section 5(t)(9)(A) defines ``core capital'' to mean ``core 
capital as defined by the Comptroller of the Currency for national 
banks, less any unidentifiable intangible assets [goodwill]'' unless 
the OCC prescribes a more stringent definition.
    \52\ 54 FR 49649 (Nov. 30, 1989).
---------------------------------------------------------------------------

    After reviewing HOLA, the OCC has determined that a unique 
regulatory definition of tangible capital is not necessary to satisfy 
the requirement of the statute. Therefore, the OCC is proposing to 
define ``tangible capital'' as the amount of tier 1 capital plus the 
amount of outstanding perpetual preferred stock (including related 
surplus) not included in tier 1 capital. This definition mirrors the 
proposed definition of ``tangible equity'' for PCA purposes.\53\
---------------------------------------------------------------------------

    \53\ See 12 CFR 6.2.
---------------------------------------------------------------------------

    While OCC recognizes that the terms used are not identical 
(``capital'' as compared to ``equity''), the OCC believes that this 
revised definition of tangible capital would reduce the computational 
burden on federal savings associations in complying with this statutory 
mandate, as well as being consistent with both the purposes of HOLA and 
PCA. Similarly, the FDIC also is proposing to include a tangible 
capital requirement for state savings associations as part of this 
proposal.

III. Definition of Capital

A. Capital Components and Eligibility Criteria for Regulatory Capital 
Instruments

1. Common Equity Tier 1 Capital
    Under this proposal, a banking organization's common equity tier 1 
capital would be the sum of its outstanding common equity tier 1 
capital instruments and related surplus (net of treasury stock), 
retained earnings, accumulated other comprehensive income (AOCI), and 
common equity tier 1 minority interest subject to the provisions set 
forth in section 21 of the proposal, minus regulatory adjustments and 
deductions specified in section 22 of the proposal.
a. Criteria
    To ensure that a banking organization's common equity tier 1 
capital is available to absorb losses as they occur, consistent with 
Basel III, the agencies propose to require that common equity tier 1 
capital instruments issued by a banking organization satisfy the 
following criteria:
    (1) The instrument is paid in, issued directly by the banking 
organization, and represents the most subordinated claim in a 
receivership, insolvency, liquidation, or similar proceeding of the 
banking organization.
    (2) The holder of the instrument is entitled to a claim on the 
residual assets of the banking organization that is proportional with 
the holder's share of the banking organization's issued capital after 
all senior claims have been satisfied in a receivership, insolvency, 
liquidation, or similar proceeding. That is, the holder has an 
unlimited and variable claim, not a fixed or capped claim.
    (3) The instrument has no maturity date, can only be redeemed via 
discretionary repurchases with the prior approval of the agency, and 
does not contain any term or feature that creates an incentive to 
redeem.
    (4) The banking organization did not create at issuance of the 
instrument through any action or communication an expectation that it 
will buy back, cancel, or redeem the instrument, and the instrument 
does not include any term or feature that might give rise to such an 
expectation.
    (5) Any cash dividend payments on the instrument are paid out of 
the banking organization's net income and retained earnings and are not 
subject to

[[Page 52811]]

a limit imposed by the contractual terms governing the instrument.
    (6) The banking organization has full discretion at all times to 
refrain from paying any dividends and making any other capital 
distributions on the instrument without triggering an event of default, 
a requirement to make a payment-in-kind, or an imposition of any other 
restrictions on the banking organization.
    (7) Dividend payments and any other capital distributions on the 
instrument may be paid only after all legal and contractual obligations 
of the banking organization have been satisfied, including payments due 
on more senior claims.
    (8) The holders of the instrument bear losses as they occur 
equally, proportionately, and simultaneously with the holders of all 
other common stock instruments before any losses are borne by holders 
of claims on the banking organization with greater priority in a 
receivership, insolvency, liquidation, or similar proceeding.
    (9) The paid-in amount is classified as equity under GAAP.
    (10) The banking organization, or an entity that the banking 
organization controls, did not purchase or directly or indirectly fund 
the purchase of the instrument.
    (11) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and is not subject to any other arrangement that legally 
or economically enhances the seniority of the instrument.
    (12) The instrument has been issued in accordance with applicable 
laws and regulations. In most cases, the agencies, understand that the 
issuance of these instruments would require the approval of the board 
of directors of the banking organization or, where applicable, of the 
banking organization's shareholders or of other persons duly authorized 
by the banking organization's shareholders.
    (13) The instrument is reported on the banking organization's 
regulatory financial statements separately from other capital 
instruments.
    These proposed criteria have been designed to ensure that common 
equity tier 1 capital instruments do not possess features that would 
cause a banking organization's condition to further weaken during 
periods of economic and market stress. For example, the proposed 
requirement that a banking organization have full discretion on the 
amount and timing of distributions and dividend payments would enhance 
the ability of the banking organization to absorb losses during periods 
of stress. The agencies believe that most existing common stock 
instruments previously issued by U.S. banking organizations fully 
satisfy the proposed criteria.
    The criteria would also apply to instruments issued by banking 
organizations where ownership of the company is neither freely 
transferable, nor evidenced by certificates of ownership or stock, such 
as mutual banking organizations. For these entities, instruments that 
would be considered common equity tier 1 capital would be those that 
are fully equivalent to common stock instruments in terms of their 
subordination and availability to absorb losses, and that do not 
possess features that could cause the condition of the company to 
weaken as a going concern during periods of market stress.
    The agencies believe that stockholders' voting rights generally are 
a valuable corporate governance tool that permits parties with an 
economic interest at stake to take part in the decision-making process 
through votes on establishing corporate objectives and policy, and in 
electing the banking organization's board of directors. For that 
reason, the agencies continue to expect under the proposal that voting 
common stockholders' equity (net of the adjustments to and deductions 
from common equity tier 1 capital proposed under the rule) should be 
the dominant element within common equity tier 1 capital. To the extent 
that a banking organization issues non-voting common shares or common 
shares with limited voting rights, such shares should be identical to 
the banking organization's voting common shares in all respects except 
for any limitations on voting rights.
    Question 15: The agencies solicit comments on the eligibility 
criteria for common equity tier 1 capital instruments. Which, if any, 
criteria could be problematic given the main characteristics of 
outstanding common stock instruments and why? Please provide supporting 
data and analysis.
b. Treatment of Unrealized Gains and Losses of Certain Debt Securities 
in Common Equity Tier 1 Capital
    Under the agencies' general risk-based capital rules, unrealized 
gains and losses on AFS debt securities are not included in regulatory 
capital, unrealized losses on AFS equity securities are included in 
tier 1 capital, and unrealized gains on AFS equity securities are 
partially included in tier 2 capital.\54\ As proposed, unrealized gains 
and losses on all AFS securities would flow through to common equity 
tier 1 capital. This would include those unrealized gains and losses 
related to debt securities whose valuations primarily change as a 
result of fluctuations in a benchmark interest rate, as opposed to 
changes in credit risk (for example, U.S. Treasuries and U.S. 
government agency debt obligations).
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    \54\ See 12 CFR part 3, appendix A, section 2(b)(5) (OCC); 12 
CFR parts 208 and 225, appendix A, section II.A.2.e (Board); 12 CFR 
part 325, appendix A, section I.A.2.f (FDIC).
---------------------------------------------------------------------------

    The agencies believe this proposed treatment would better reflect 
an institution's actual risk. In particular, while unrealized gains and 
losses on AFS securities might be temporary in nature and might reverse 
over a longer time horizon, (especially when they are primarily 
attributable to changes in a benchmark interest rate), unrealized 
losses could materially affect a banking organization's capital 
position at a particular point in time and associated risks should be 
reflected in its capital ratios. In addition, the proposed treatment 
would be consistent with the common market practice of evaluating a 
firm's capital strength by measuring its tangible common equity.
    Accordingly, the agencies propose to require unrealized gains and 
losses on all AFS securities to flow through to common equity tier 1 
capital. However, the agencies recognize that including unrealized 
gains and losses related to certain debt securities whose valuations 
primarily change as a result of fluctuations in a benchmark interest 
rate could introduce substantial volatility in a banking organization's 
regulatory capital ratios. The potential increased volatility could 
significantly change a banking organization's risk-based capital 
ratios, in some cases, due primarily to fluctuations in a benchmark 
interest rate and could result in a change in the banking 
organization's PCA category. Likewise, the agencies recognize that such 
volatility could discourage some banking organizations from holding 
highly liquid instruments with very low levels of credit risk even 
where prudent for liquidity risk management.
    The agencies seek comment on alternatives to the proposed treatment 
of unrealized gains and losses on AFS securities, including an approach 
where the unrealized gains and losses related to debt securities whose 
valuations primarily change as a result of fluctuations in a benchmark 
interest rate would be excluded from a banking organization's 
regulatory capital. In particular, the agencies seek comment on an 
approach that would not include in regulatory capital unrealized gains 
and losses on U.S. government and agency debt obligations, U.S. GSE 
debt obligations and other sovereign debt obligations that would 
qualify for a zero

[[Page 52812]]

percent risk weight under the proposed standardized approach. The 
agencies also seek comment on whether unrealized gains and losses on 
general obligations issued by states or other political subdivisions of 
the United States should receive similar treatment, even though 
unrealized gains and losses on these obligations are more likely to 
result from changes in credit risk and not primarily from fluctuations 
in a benchmark interest rate.
    Question 16: To what extent would a requirement to include 
unrealized gains and losses on all debt securities whose changes in 
fair value are recognized in AOCI (1) result in excessive volatility in 
regulatory capital; (2) impact the levels of liquid assets held by 
banking organizations; (3) affect the composition of the banking 
organization's securities portfolios; and (4) pose challenges for 
banking organizations' asset-liability management? Please provide 
supporting data and analysis.
    Question 17: What are the pros and cons of an alternative treatment 
that would allow U.S. banking organizations to exclude from regulatory 
capital unrealized gains and losses on debt securities whose changes in 
fair value are predominantly attributable to fluctuations in a 
benchmark interest rate (for example, U.S. government and agency debt 
obligations and U.S. GSE debt obligations)? In the context of such an 
alternative treatment, what other categories of securities should be 
considered and why? Are there other alternatives that the agencies 
should consider (for example, retaining the current treatment for 
unrealized gains and losses on AFS debt and equity securities)?
2. Additional Tier 1 Capital
    Consistent with Basel III, under the proposal, additional tier 1 
capital would be the sum of: Additional tier 1 capital instruments that 
satisfy certain criteria, related surplus, and tier 1 minority interest 
that is not included in a banking organization's common equity tier 1 
capital (subject to the limitations on minority interests set forth in 
section 21 of the proposal); less applicable regulatory adjustments and 
deductions. Under the agencies' existing capital rules, non-cumulative 
perpetual preferred stock, which currently qualifies as tier 1 capital, 
generally would continue to qualify as additional tier 1 capital under 
the proposal. The proposed criteria for qualifying additional tier 1 
capital instruments, consistent with Basel III criteria, are:
    (1) The instrument is issued and paid in.
    (2) The instrument is subordinated to depositors, general 
creditors, and subordinated debt holders of the banking organization in 
a receivership, insolvency, liquidation, or similar proceeding.
    (3) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and not subject to any other arrangement that legally or 
economically enhances the seniority of the instrument.
    (4) The instrument has no maturity date and does not contain a 
dividend step-up or any other term or feature that creates an incentive 
to redeem.
    (5) If callable by its terms, the instrument may be called by the 
banking organization only after a minimum of five years following 
issuance, except that the terms of the instrument may allow it to be 
called earlier than five years upon the occurrence of a regulatory 
event (as defined in the agreement governing the instrument) that 
precludes the instrument from being included in additional tier 1 
capital or a tax event. In addition:
    (i) The banking organization must receive prior approval from the 
agency to exercise a call option on the instrument.
    (ii) The banking organization does not create at issuance of the 
instrument, through any action or communication, an expectation that 
the call option will be exercised.
    (iii) Prior to exercising the call option, or immediately 
thereafter, the banking organization must either:
    (A) Replace the instrument to be called with an equal amount of 
instruments that meet the criteria under section 20(b) or (c) of the 
proposal (replacement can be concurrent with redemption of existing 
additional tier 1 capital instruments); or
    (B) Demonstrate to the satisfaction of the agency that following 
redemption, the banking organization will continue to hold capital 
commensurate with its risk.
    (6) Redemption or repurchase of the instrument requires prior 
approval from the agency.
    (7) The banking organization has full discretion at all times to 
cancel dividends or other capital distributions on the instrument 
without triggering an event of default, a requirement to make a 
payment-in-kind, or an imposition of other restrictions on the banking 
organization except in relation to any capital distributions to holders 
of common stock.
    (8) Any capital distributions on the instrument are paid out of the 
banking organization's net income and retained earnings.
    (9) The instrument does not have a credit-sensitive feature, such 
as a dividend rate that is reset periodically based in whole or in part 
on the banking organization's credit quality, but may have a dividend 
rate that is adjusted periodically independent of the banking 
organization's credit quality, in relation to general market interest 
rates or similar adjustments.
    (10) The paid-in amount is classified as equity under GAAP.
    (11) The banking organization, or an entity that the banking 
organization controls, did not purchase or directly or indirectly fund 
the purchase of the instrument.
    (12) The instrument does not have any features that would limit or 
discourage additional issuance of capital by the banking organization, 
such as provisions that require the banking organization to compensate 
holders of the instrument if a new instrument is issued at a lower 
price during a specified time frame.
    (13) If the instrument is not issued directly by the banking 
organization or by a subsidiary of the banking organization that is an 
operating entity, the only asset of the issuing entity is its 
investment in the capital of the banking organization, and proceeds 
must be immediately available without limitation to the banking 
organization or to the banking organization's top-tier holding company 
in a form which meets or exceeds all of the other criteria for 
additional tier 1 capital instruments. De minimis assets related to the 
operation of the issuing entity can be disregarded for purposes of this 
criterion.
    (14) For an advanced approaches banking organization, the governing 
agreement, offering circular, or prospectus of an instrument issued 
after January 1, 2013 must disclose that the holders of the instrument 
may be fully subordinated to interests held by the U.S. government in 
the event that the banking organization enters into a receivership, 
insolvency, liquidation, or similar proceeding.
    The proposed criteria are designed to ensure that additional tier 1 
capital instruments are available to absorb losses on a going concern 
basis. Trust preferred securities and cumulative perpetual preferred 
securities, which are eligible for limited inclusion in tier 1 capital 
under the general risk-based capital rules for bank holding companies, 
would generally not qualify for inclusion in additional tier 1

[[Page 52813]]

capital.\55\ The agencies believe that instruments that allow for the 
accumulation of interest payable are not sufficiently loss-absorbent to 
be included in tier 1 capital. In addition, the exclusion of these 
instruments from the tier 1 capital of depository institution holding 
companies is consistent with section 171 of the Dodd-Frank Act.
---------------------------------------------------------------------------

    \55\ See 12 CFR part 225, appendix A, section II.A.1.
---------------------------------------------------------------------------

    The agencies recognize that instruments classified as liabilities 
for accounting purposes could potentially be included in additional 
tier 1 capital under Basel III. However, as proposed, an instrument 
classified as a liability under GAAP would not qualify as additional 
tier 1 capital. The agencies believe that allowing only the inclusion 
of instruments classified as equity under GAAP in tier 1 capital would 
help strengthen the loss-absorption capabilities of additional tier 1 
capital instruments, further increasing the quality of the capital base 
of U.S. banking organizations.
    The agencies are also proposing to allow banking organizations to 
include in additional tier 1 capital instruments that were (1) issued 
under the Small Business Jobs Act of 2010 or, prior to October 4, 2010, 
under the Emergency Economic Stabilization Act of 2008, and (2) 
included in tier 1 capital under the agencies' current general risk-
based capital rules.\56\ These instruments would be included in tier 1 
capital whether or not they meet the proposed qualifying criteria for 
common equity tier 1 or additional tier 1 capital instruments. The 
agencies believe that continued tier 1 capital treatment of these 
instruments is important to promote financial recovery and stability 
following the recent financial crisis.\57\
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    \56\ Public Law 110-343, 122 Stat. 3765 (October 3, 2008).
    \57\ See 73 FR 43982 (July 29, 2008); see also 76 FR 35959 (June 
21, 2011).
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    Question 18: The agencies solicit comments and views on the 
eligibility criteria for additional tier 1 capital instruments. Is 
there any specific criterion that could potentially be problematic 
given the main characteristics of outstanding non-cumulative perpetual 
preferred instruments? If so, please explain.
Additional Criterion Regarding Certain Institutional Investors' Minimum 
Dividend Payment Requirements
    Some banking organizations may want or need to limit their capital 
distributions during a particular payout period, but may opt to pay a 
penny dividend instead of fully cancelling dividends to common 
shareholders because certain institutional investors only hold stocks 
that pay a dividend. The agencies believe that the payment of a penny 
dividend on common stock should not preclude a banking organization 
from canceling (or making marginal) dividend payments on additional 
tier 1 capital instruments. The agencies are therefore considering a 
revision to criterion (7) of additional tier 1 capital instruments that 
would require a banking organization to have the ability to cancel or 
substantially reduce dividend payments on additional tier 1 capital 
instruments during a period of time when the banking organization is 
paying a penny dividend to its common shareholders.
    The agencies believe that such a requirement could substantially 
increase the loss-absorption capacity of additional tier 1 capital 
instruments. To maintain the hierarchy of the capital structure under 
these circumstances, banking organizations would have the ability to 
pay the holders of additional tier 1 capital instruments the equivalent 
of what they pay out to common shareholders.
    Question 19: What is the potential impact of such a requirement on 
the traditional hierarchy of capital instruments and on the market 
dynamics and cost of issuing additional tier 1 capital instruments?
    Question 20: What mechanisms could be used to ensure, 
contractually, that such a requirement would not result in an 
additional tier 1 capital instrument being effectively more loss 
absorbent than common stock?
3. Tier 2 Capital
    Under the proposal, tier 2 capital would be the sum of: Tier 2 
capital instruments that satisfy certain criteria, related surplus, 
total capital minority interests not included in a banking 
organization's tier 1 capital (subject to the limitations and 
requirements on minority interests set forth in section 21 of the 
proposal), and limited amounts of the allowance for loan and lease 
losses (ALLL); less any applicable regulatory adjustments and 
deductions. Consistent with the general risk-based capital rules, when 
calculating its standardized total capital ratio, a banking 
organization would be able to include in tier 2 capital the amount of 
ALLL that does not exceed 1.25 percent of its total standardized risk-
weighted assets not including any amount of the ALLL (a banking 
organization subject to the market risk capital rules would exclude its 
standardized market risk-weighted assets from the calculation).\58\
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    \58\ A banking organization would deduct the amount of ALLL in 
excess of the amount permitted to be included in tier 2 capital, as 
well as allocated transfer risk reserves, from standardized total 
risk-weighted risk assets and use the resulting amount as the 
denominator of the standardized total capital ratio.
---------------------------------------------------------------------------

    When calculating its advanced approaches total capital ratio, 
rather than including in tier 2 capital the amount of ALLL described 
previously, an advanced approaches banking organization may include the 
excess of eligible credit reserves over its total expected credit 
losses (ECL) to the extent that such amount does not exceed 0.6 percent 
of its total credit risk weighted-assets.\59\
---------------------------------------------------------------------------

    \59\ An advanced approaches banking organization would deduct 
any excess eligible credit reserves that are not permitted to be 
included in tier 2 capital from advanced approaches total risk-
weighted assets and use the resulting amount as the denominator of 
the total capital ratio.
---------------------------------------------------------------------------

    The proposed criteria for tier 2 capital instruments, consistent 
with Basel III, are:
    (1) The instrument is issued and paid in.
    (2) The instrument is subordinated to depositors and general 
creditors of the banking organization.
    (3) The instrument is not secured, not covered by a guarantee of 
the banking organization or of an affiliate of the banking 
organization, and not subject to any other arrangement that legally or 
economically enhances the seniority of the instrument in relation to 
more senior claims.
    (4) The instrument has a minimum original maturity of at least five 
years. At the beginning of each of the last five years of the life of 
the instrument, the amount that is eligible to be included in tier 2 
capital is reduced by 20 percent of the original amount of the 
instrument (net of redemptions) and is excluded from regulatory capital 
when remaining maturity is less than one year. In addition, the 
instrument must not have any terms or features that require, or create 
significant incentives for, the banking organization to redeem the 
instrument prior to maturity.
    (5) The instrument, by its terms, may be called by the banking 
organization only after a minimum of five years following issuance, 
except that the terms of the instrument may allow it to be called 
sooner upon the occurrence of an event that would preclude the 
instrument from being included in tier 2 capital, or a tax event. In 
addition:
    (i) The banking organization must receive the prior approval of the 
agency to exercise a call option on the instrument.

[[Page 52814]]

    (ii) The banking organization does not create at issuance, through 
action or communication, an expectation the call option will be 
exercised.
    (iii) Prior to exercising the call option, or immediately 
thereafter, the banking organization must either:
    (A) Replace any amount called with an equivalent amount of an 
instrument that meets the criteria for regulatory capital under this 
section,\60\ or
---------------------------------------------------------------------------

    \60\ Replacement of tier 2 capital instruments can be concurrent 
with redemption of existing tier 2 capital instruments.
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    (B) Demonstrate to the satisfaction of the agency that following 
redemption, the banking organization would continue to hold an amount 
of capital that is commensurate with its risk.
    (6) The holder of the instrument must have no contractual right to 
accelerate payment of principal or interest on the instrument, except 
in the event of a receivership, insolvency, liquidation, or similar 
proceeding of the banking organization.
    (7) The instrument has no credit-sensitive feature, such as a 
dividend or interest rate that is reset periodically based in whole or 
in part on the banking organization's credit standing, but may have a 
dividend rate that is adjusted periodically independent of the banking 
organization's credit standing, in relation to general market interest 
rates or similar adjustments.
    (8) The banking organization, or an entity that the banking 
organization controls, has not purchased and has not directly or 
indirectly funded the purchase of the instrument.
    (9) If the instrument is not issued directly by the banking 
organization or by a subsidiary of the banking organization that is an 
operating entity, the only asset of the issuing entity is its 
investment in the capital of the banking organization, and proceeds 
must be immediately available without limitation to the banking 
organization or the banking organization's top-tier holding company in 
a form that meets or exceeds all the other criteria for tier 2 capital 
instruments under this section.\61\
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    \61\ De minimis assets related to the operation of the issuing 
entity can be disregarded for purposes of this criterion.
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    (10) Redemption of the instrument prior to maturity or repurchase 
requires the prior approval of the agency.
    (11) For an advanced approaches banking organization, the governing 
agreement, offering circular, or prospectus of an instrument issued 
after January 1, 2013 must disclose that the holders of the instrument 
may be fully subordinated to interests held by the U.S. government in 
the event that the banking organization enters into a receivership, 
insolvency, liquidation, or similar proceeding.
    As explained previously, under the proposed eligibility criteria 
for additional tier 1 capital instruments, trust preferred securities 
and cumulative perpetual preferred securities would not qualify for 
inclusion in additional tier 1 capital. However, many of these 
instruments could qualify for inclusion in tier 2 capital under the 
proposed eligibility criteria for tier 2 capital instruments.
    Given that as proposed, unrealized gains and losses on AFS 
securities would flow through to common equity tier 1 capital, the 
agencies propose to eliminate the inclusion of a portion of certain 
unrealized gains on AFS equity securities in tier 2 capital.
    As a result of the proposed new minimum common equity tier 1 
capital requirement, higher tier 1 capital requirement, and the broader 
goal of simplifying the definition of tier 2 capital, the agencies are 
proposing to eliminate some existing limits related to tier 2 capital. 
Specifically, there would be no limit on the amount of tier 2 capital 
that could be included in a banking organization's total capital. 
Likewise, existing limitations on term subordinated debt, limited-life 
preferred stock and trust preferred securities within tier 2 would also 
be eliminated.\62\
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    \62\ See 12 CFR part 3, Appendix A, section 2(b)(3); 12 CFR 
parts 208 and 225, appendix A, section II.A.2; 12 CFR part 325, 
appendix A, section I.A.2.
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    Question 21: The agencies solicit comments on the eligibility 
criteria for tier 2 capital instruments. Is there any specific 
criterion that could potentially be problematic? If so, please explain.
    For the reasons explained previously with respect to tier 1 capital 
instruments, the agencies propose to allow an instrument that qualified 
as tier 2 capital under the general risk-based capital rules and that 
was issued under the Small Business Jobs Act of 2010 or, prior to 
October 4, 2010, under the Emergency Economic Stabilization Act of 
2008, to continue to be includable in tier 2 capital regardless of 
whether it meets all of the proposed qualifying criteria.
4. Capital Instruments of Mutual Banking Organizations
    Most of the capital of mutual banking organizations is generally in 
the form of retained earnings (including retained earnings surplus 
accounts) and the agencies believe that mutual banking organizations 
generally should be able to meet the proposed regulatory capital 
requirements.
    Consistent with Basel III, the proposed criteria for regulatory 
capital instruments would potentially permit the inclusion in 
regulatory capital of certain capital instruments issued by mutual 
banking organizations (for example, non-withdrawable accounts, pledged 
deposits, or mutual capital certificates), provided that the 
instruments meet all the proposed eligibility criteria of the relevant 
capital component.
    However, some previously-issued mutual capital instruments that 
were includable in the regulatory capital of mutual banking 
organizations may not meet all of the relevant criteria for capital 
instruments under the proposal. For example, instruments that are 
liabilities or that are cumulative would not meet the criteria for 
additional tier 1 capital instruments. However, these instruments would 
be subject to the proposed transition provisions and excluded from 
capital over time.
    Question 21: What instruments or accounts currently included in the 
regulatory capital of mutual banking organizations would not meet the 
proposed criteria for capital instruments?
    Question 23: What impact, if any, would the exclusion of such 
instruments or accounts have on the regulatory capital ratios of mutual 
banking organizations? Please provide data supporting your answer.
    Question 24: Would such instruments be unable to meet any of the 
proposed criteria? Could the terms of such instruments be modified to 
align with the proposed criteria for capital instruments? Please 
explain.
    Question 25: Would the proposed criteria for capital instruments 
affect the ability of mutual banking organizations to increase 
regulatory capital levels going forward?
5. Grandfathering of Certain Capital Instruments
    Under Basel III, capital investments in a banking organization made 
before September 12, 2010 by the government where the banking 
organization is domiciled are grandfathered until January 1, 2018. 
However, as described above with respect to qualifying criteria for 
tier 1 and tier 2 instruments, the agencies are proposing a different 
grandfathering treatment for the capital investments by the U.S. 
government, consistent with the Dodd-Frank Act.\63\
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    \63\ See 12 U.S.C. 5371(b)(5)(A).
---------------------------------------------------------------------------

    As discussed above, as proposed, capital investments by the U.S.

[[Page 52815]]

government included in the tier 1 and tier 2 capital of banking 
organizations issued under the Small Business Jobs Act of 2010 or, 
prior to October 4, 2010,\64\ under the Emergency Economic 
Stabilization Act \65\ (for example, tier 1 instruments issued under 
the TARP program) would be grandfathered permanently. Transitional 
arrangements for regulatory capital instruments that do not comply with 
the Basel III criteria and transitional arrangements for debt or equity 
instruments issued by depository institution holding companies that do 
not qualify as regulatory capital under the general risk-based capital 
rules are discussed under section V of this preamble.
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    \64\ Public Law 111-240 (September 27, 2010).
    \65\ Public Law 110-343, 122 Stat. 3765 (October 3, 2008).
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6. Agency Approval of Capital Elements
    The agencies expect that most existing common stock instruments 
that banking organizations currently include in tier 1 capital would 
meet the proposed eligibility criteria for common equity tier 1 capital 
instruments. In addition, the agencies expect that most existing non-
cumulative perpetual preferred stock instruments that banking 
organizations currently include in tier 1 capital and most existing 
subordinated debt instruments they include in tier 2 capital would meet 
the proposed eligibility criteria for additional tier 1 and tier 2 
capital instruments, respectively. However, the agencies recognize that 
over time, capital instruments that are equivalent in quality and loss-
absorption capacity to existing instruments may be created to satisfy 
different market needs and are proposing to consider the eligibility of 
such instruments on a case-by-case basis.
    Accordingly, the agencies propose to require a banking organization 
request approval from its primary federal supervisor before it may 
include a capital element in regulatory capital, unless:
    (i) Such capital element is currently included in regulatory 
capital under the agencies' general risk-based capital and leverage 
rules and the underlying instrument complies with the applicable 
proposed eligibility criteria for regulatory capital instruments; or
    (ii) The capital element is equivalent in terms of capital quality 
and loss-absorption capabilities to an element described in a previous 
decision made publicly available by the banking organization's primary 
federal supervisor.
    The agency that is considering a request to include a new capital 
element in regulatory capital would consult with the other agencies 
when determining whether the element should be included in common 
equity tier 1, additional tier 1, or tier 2 capital. Once an agency 
determines that a capital element may be included in a banking 
organization's common equity tier 1, additional tier 1, or tier 2 
capital, the agency would make its decision publicly available, 
including a brief description of the element and the rationale for the 
conclusion.
7. Addressing the Point of Non-Viability Requirements Under Basel III
    During the recent financial crisis, in the United States and other 
countries, governments lent to, and made capital investments in, 
distressed banking organizations. These investments helped to stabilize 
the recipient banking organizations and the financial sector as a 
whole. However, because of the investments, the recipient banking 
organizations' existing tier 2 capital instruments, and (in some cases) 
tier 1 capital instruments, did not absorb the banking organizations' 
credit losses consistent with the purpose of regulatory capital. At the 
same time, taxpayers became exposed to those losses.
    On January 13, 2011, the BCBS issued international standards for 
all additional tier 1 and tier 2 capital instruments issued by 
internationally active banking organizations, to ensure that such 
regulatory capital instruments fully absorb losses before taxpayers are 
exposed to such losses (Basel non-viability standard). Under the Basel 
non-viability standard, all non-common stock regulatory capital 
instruments issued by an internationally active banking organization 
must include terms that subject the instruments to write-off or 
conversion to common equity at the point that either (1) the write-off 
or conversion of those instruments occurs or (2) a government (or 
public sector) injection of capital would be necessary to keep the 
banking organization solvent. Alternatively, if the governing 
jurisdiction of the banking organization has established laws that 
require such tier 1 and tier 2 capital instruments to be written off or 
otherwise fully absorb losses before tax payers are exposed to loss, 
the standard is already met. If the governing jurisdiction has such 
laws in place, the Basel non-viability standard states that 
documentation for such instruments should disclose that information to 
investors and market participants, and should clarify that the holders 
of such instruments would fully absorb losses before taxpayers are 
exposed to loss.\66\
---------------------------------------------------------------------------

    \66\ See ``Final Elements of the Reforms to Raise the Quality of 
Regulatory Capital'' (January 2011), available at: http://www.bis.org/press/p110113.pdf.
---------------------------------------------------------------------------

    The agencies believe that U.S. law generally is consistent with the 
Basel non-viability standard. The resolution regime established in 
Title 2, section 210 of the Dodd-Frank Act provides the FDIC with the 
authority necessary to place failing financial companies that pose a 
significant risk to the financial stability of the United States into 
receivership.\67\ The Dodd-Frank Act provides that this authority shall 
be exercised in the manner that minimizes systemic risk and moral 
hazard, so that (1) Creditors and shareholders will bear the losses of 
the financial company; (2) management responsible for the condition of 
the financial company will not be retained; and (3) the FDIC and other 
appropriate agencies will take steps necessary and appropriate to 
ensure that all parties, including holders of capital instruments, 
management, directors, and third parties having responsibility for the 
condition of the financial company, bear losses consistent with their 
respective ownership or responsibility.\68\ Section 11 of the Federal 
Deposit Insurance Act has similar provisions for the resolution of 
depository institutions.\69\ Additionally, under U.S. bankruptcy law, 
regulatory capital instruments issued by a company in bankruptcy would 
absorb losses before more senior unsecured creditors.
---------------------------------------------------------------------------

    \67\ See 12 U.S.C. 5384.
    \68\ 12 U.S.C. 5384.
    \69\ 12 U.S.C. 1821.
---------------------------------------------------------------------------

    Furthermore, consistent with the Basel non-viability standard, 
under the proposal, additional tier 1 and tier 2 capital instruments 
issued by advanced approaches banking organizations after the proposed 
requirements for capital instruments are finalized would be required to 
include a disclosure that the holders of the instrument may be fully 
subordinated to interests held by the U.S. government in the event that 
the banking organization enters into receivership, insolvency, 
liquidation, or similar proceeding.
8. Qualifying Capital Instruments Issued by Consolidated Subsidiaries 
of a Banking Organization
    Investments by third parties in a consolidated subsidiary of a 
banking organization may significantly improve the overall capital 
adequacy of that subsidiary. However, as became apparent during the 
financial crisis, while capital issued by consolidated subsidiaries and 
not owned by the

[[Page 52816]]

parent banking organization (minority interest) is available to absorb 
losses at the subsidiary level, that capital does not always absorb 
losses at the consolidated level. Therefore, inclusion of minority 
interests in the regulatory capital at the consolidated level should be 
limited to prevent highly capitalized subsidiaries from overstating the 
amount of capital available to absorb losses at the consolidated level.
    Under the proposal, a banking organization would be allowed to 
include in its consolidated capital limited amounts of minority 
interests, if certain requirements are met. Minority interest would be 
classified as a common equity tier 1, tier 1, or total capital minority 
interest depending on the underlying capital instrument and on the type 
of subsidiary issuing such instrument. Any instrument issued by the 
consolidated subsidiary to third parties would need to meet the 
relevant eligibility criteria under section 20 of the proposal in order 
for the resulting minority interest to be included in the banking 
organization's common equity tier 1, additional tier 1 or tier 2 
capital elements, as appropriate. In addition, common equity tier 1 
minority interest would need to be issued by a depository institution 
or foreign bank that is a consolidated subsidiary of a banking 
organization.
    The limits on the amount of minority interest that may be included 
in the consolidated capital of a banking organization would be based on 
the amount of capital held by the consolidated subsidiary, relative to 
the amount of capital the subsidiary would have to hold in order to 
avoid any restrictions on capital distributions and discretionary bonus 
payments under the capital conservation buffer framework, as provided 
in section 11 of the proposal.
    For example, if a subsidiary needs to maintain a common equity tier 
1 capital ratio of more than 7 percent to avoid limitations on capital 
distributions and discretionary bonus payments, and the subsidiary's 
common equity tier 1 capital ratio is 8 percent, the subsidiary would 
be considered to have ``surplus'' common equity tier 1 capital and, at 
the consolidated level, the banking organization would not be able to 
include the portion of such surplus common equity tier 1 capital held 
by third party investors.
    The steps for determining the amount of minority interest 
includable in a banking organization's regulatory capital are described 
in this section below and are illustrated in a numerical example that 
follows. For example, the amount of common equity tier 1 minority 
interest includable in the common equity tier 1 capital of a banking 
organization under the proposal would be: the common equity tier 1 
minority interest of the subsidiary minus the ratio of the subsidiary's 
common equity tier 1 capital owned by third parties to the total common 
equity tier 1 capital of the subsidiary, multiplied by the difference 
between the common equity tier 1 capital of the subsidiary and the 
lower of: (1) The amount of common equity tier 1 capital the subsidiary 
must hold to avoid restrictions on capital distributions and 
discretionary bonus payments, or (2) the total risk-weighted assets of 
the banking organization that relate to the subsidiary, multiplied by 
the common equity tier 1 capital ratio needed by the banking 
organization subsidiary to avoid restrictions on capital distributions 
and discretionary bonus payments. If the subsidiary were not subject to 
the same minimum regulatory capital requirements or capital 
conservation buffer framework of the banking organization, the banking 
organization would need to assume, for purposes of the calculation 
described above, that the subsidiary is subject to the minimum capital 
requirements and to the capital conservation buffer framework of the 
banking organization.
    To determine the amount of tier 1 minority interest includable in 
the tier 1 capital of the banking organization and the total capital 
minority interest includable in the total capital of the banking 
organization, a banking organization would follow the same methodology 
as the one outlined previously for common equity tier 1 minority 
interest. Section 21 of the proposal sets forth the precise 
calculations. The amount of tier 1 minority interest that can be 
included in the additional tier 1 capital of the banking organization 
is equivalent to the banking organization's tier 1 minority interest, 
subject to the limitations outlined above, less any tier 1 minority 
interest that is included in the banking organization's common equity 
tier 1 capital. Likewise, the amount of total capital minority interest 
that can be included in the tier 2 capital of the banking organization 
is equivalent to its total capital minority interest, subject to the 
limitations outlined previously, less any tier 1 minority interest that 
is included in the banking organization's tier 1 capital.
    As proposed, minority interest related to qualifying common or 
noncumulative perpetual preferred stock directly issued by a 
consolidated U.S. depository institution or foreign bank subsidiary, 
which are eligible for inclusion in tier 1 capital under the general 
risk-based capital rules without limitation, would generally qualify 
for inclusion in common equity tier 1 and additional tier 1 capital, 
respectively, subject to the appropriate limits under section 21 of the 
proposed rule. Likewise, under the proposed rule, minority interest 
related to qualifying cumulative perpetual preferred stock directly 
issued by a consolidated U.S. depository institution or foreign bank 
subsidiary, which are eligible for limited inclusion in tier 1 capital 
under the general risk-based capital rules, would generally not qualify 
for inclusion in additional tier 1 capital under the proposal.

                                                        Table 8-- Example of the Calculation of the Proposed Limits on Minority Interest
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
 
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                             (a)             (b)             (c)             (d)             (e)             (f)             (g)             (h)
                                                                  Capital issued   Capital owned       Amount of         Minimum         Minimum         Surplus         Surplus        Minority
                                                                   by subsidiary        by third        minority         capital         capital      capital of        minority        interest
                                                                             ($)         parties    interest ($)     requirement     requirement  subsidiary ($)    interest ($)     included at
                                                                                       (percent)       ((a)*(b))    plus capital    plus capital       ((a)-(e))       ((f)*(b))         banking
                                                                                                                    conservation    conservation                                    organization
                                                                                                                          buffer      buffer ($)                                  level ($)((c)-
                                                                                                                       (percent)     ((RWAs*(d))                                            (g))
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Common equity tier 1 capital....................................              80              30              24               7              70              10               3              21
                                                                 -------------------------------------------------------------------------------------------------------------------------------
Additional tier 1 capital.......................................              30              50              15  ..............  ..............  ..............  ..............             9.1
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Tier 1 capital..................................................             110              35              39             8.5              85              25             8.9            30.1
Tier 2 capital..................................................              20              75              15  ..............  ..............  ..............  ..............            13.5
                                                                 -------------------------------------------------------------------------------------------------------------------------------
    Total capital...............................................             130              42              54            10.5             105              25            10.4            43.6
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 52817]]

    For purposes of the example in table 8, assume a consolidated 
depository institution subsidiary has common equity tier 1, additional 
tier 1 and tier 2 capital of $80, $30, and $20, respectively, and third 
parties own 30 percent of the common equity tier 1 capital ($24), 50 
percent of the additional tier 1 capital ($15) and 75 percent of the 
tier 2 capital ($15). If the subsidiary has $1000 of total risk-
weighted assets, the sum of its minimum common equity tier 1 capital 
requirement (4.5 percent) plus the capital conservation buffer (2.5 
percent) (assuming a countercyclical capital buffer amount of zero) is 
7 percent ($70), the sum of its minimum tier 1 capital requirement (6.0 
percent) plus the capital conservation buffer (2.5 percent) is 8.5 
percent ($85), and the sum of its minimum total capital requirement (8 
percent) plus the capital conservation buffer (2.5 percent) is 10.5 
percent ($105).
    In this example, the surplus common equity tier 1 capital of the 
subsidiary equals $10 ($80 - $70), the amount of the surplus common 
equity tier 1 minority interest is equal to $3 ($10*$24/$80), and 
therefore the amount of common equity tier 1 minority interest that may 
be included at the consolidated level is equal to $21 ($24 - $3).
    The surplus tier 1 capital of the subsidiary is equal to $25 ($110 
- $85), the amount of the surplus tier 1 minority interest is equal to 
$8.9 ($25*$39/$110), and therefore the amount of tier 1 minority 
interest that may be included in the banking organization is equal to 
$30.1 ($39 - $8.9). Since the banking organization already includes $21 
of common equity tier 1 minority interest in its common equity tier 1 
capital, it would include $9.1 ($30.1 - $21) of such tier 1 minority 
interest in its additional tier 1 capital.
    The surplus total capital of the subsidiary is equal to $25 ($130 - 
$105), the amount of the surplus total capital minority interest is 
equal to $10.4 ($25*$54/$130), and therefore the amount of total 
capital minority interest that may be included in the banking 
organization is equal to $43.6 ($54 - $10.4). Since the banking 
organization already includes $30.1 of tier 1 minority interest in its 
tier 1 capital, it would include $13.5 ($43.6 - $30.1) of such total 
capital minority interest in its tier 2 capital.
    Question 26: The agencies solicit comments on the proposed 
qualitative restrictions and quantitative limits for including minority 
interest in regulatory capital. What is the potential impact of these 
restrictions and limitations on the issuance of certain types of 
capital instruments (for example, subordinated debt) by depository 
institution subsidiaries of banking organizations? Please provide data 
to support your answer.
Real Estate Investment Trust Preferred Capital
    A Real Estate Investment Trust (REIT) is a company that is required 
to invest in real estate and real estate-related assets and make 
certain distributions in order to maintain a tax-advantaged status. 
Some banking organizations have consolidated subsidiaries that are 
REITs, and such REITs may have issued capital instruments to be 
included in the regulatory capital of the consolidated banking 
organization as minority interest.
    Under the agencies' general risk-based capital rules, preferred 
shares issued by a REIT subsidiary generally may be included in a 
banking organization's tier 1 capital as minority interest if the 
preferred shares meet the eligibility requirements for tier 1 
capital.\70\ The agencies have interpreted this requirement to entail 
that the REIT preferred shares must be exchangeable automatically into 
noncumulative perpetual preferred stock of the banking organization 
under certain circumstances. Specifically the primary federal 
supervisor may direct the banking organization in writing to convert 
the REIT preferred shares into noncumulative perpetual preferred stock 
of the banking organization because the banking organization: (1) 
Became undercapitalized under the PCA regulations; \71\ (2) was placed 
into conservatorship or receivership; or (3) was expected to become 
undercapitalized in the near term.\72\
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    \70\ 12 CFR part 325, subpart B (FDIC); 12 CFR part 3, Appendix 
A, Sec. 2(a)(3) (OCC).
    \71\ 12 CFR part 3, appendix A, section 2(a)(3), 12 CFR 
167.5(a)(1)(iii) (OCC); 12 CFR part 208, subpart D (Board); 12 CFR 
part 325, subpart B, 12 CFR part 390, subpart Y (FDIC).
    \72\ See OCC Corporate Decision No. 97-109 (December 1997) 
available at http://www.occ.gov/static/interpretations-and-precedents/dec97/cd97-109.pdf and the Comptroller's licensing 
manual, Capital and Dividends available at http://www.occ.gov/static/publications/capital3.pdf; 12 CFR parts 208 and 225, appendix 
A (Board); 12 CFR part 325, subpart B (FDIC).
---------------------------------------------------------------------------

    Under the proposed rule, the limitations described previously on 
the inclusion of minority interest in regulatory capital would apply to 
capital instruments issued by consolidated REIT subsidiaries. 
Specifically, REIT preferred shares issued by a REIT subsidiary that 
meets the proposed definition of an operating entity would qualify for 
inclusion in the regulatory capital of a banking organization subject 
to the limitations outlined in section 21 of the proposed rule only if 
the REIT preferred shares meet the criteria for additional tier 1 or 
tier 2 capital instruments outlined in section 20 of the proposed rule. 
Under the proposal, an operating entity is a subsidiary of the banking 
organization set up to conduct business with clients with the intention 
of earning a profit in its own right.
    Because a REIT must distribute 90 percent of its earnings in order 
to maintain its beneficial tax status, a banking organization might be 
reluctant to cancel dividends on the REIT preferred shares. However, 
for a capital instrument to qualify as additional tier 1 capital, which 
must be available to absorb losses, the issuer must have the ability to 
cancel dividends. In cases where a REIT could maintain its tax status 
by declaring a consent dividend and has the ability to do so, the 
agencies generally would consider REIT preferred shares to satisfy 
criterion (7) of the proposed eligibility criteria for additional tier 
1 capital instruments under the proposed rule.\73\ The agencies do not 
expect preferred stock issued by a REIT that does not have the ability 
to declare a consent dividend to qualify as tier 1 minority interest; 
however, such instrument could qualify as total capital minority 
interest if it meets all of the relevant tier 2 eligibility criteria 
under the proposed rule.
---------------------------------------------------------------------------

    \73\ A consent dividend is a dividend that is not actually paid 
to the shareholders, but is kept as part of a company's retained 
earnings, yet the shareholders have consented to treat the dividend 
as if paid in cash and include it in gross income for tax purposes.
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    Question 27: The agencies are seeking comment on the proposed 
treatment of REIT preferred capital. Specifically, how would the 
proposed minority interest limitations and interpretation of criterion 
(7) of the proposed eligibility criteria for additional tier 1 capital 
instruments affect the future issuance of REIT preferred capital 
instruments?

B. Regulatory Adjustments and Deductions

1. Regulatory Deductions From Common Equity Tier 1 Capital
    The proposed rule would require a banking organization to make the 
deductions described in this section from the sum of its common equity 
tier 1 capital elements. Amounts deducted would be excluded from the 
banking organization's risk-weighted assets and leverage exposure.

[[Page 52818]]

Goodwill and Other Intangibles (Other Than MSAs)
    Goodwill and other intangible assets have long been either fully or 
partially excluded from regulatory capital in the U.S. because of the 
high level of uncertainty regarding the ability of the banking 
organization to realize value from these assets, especially under 
adverse financial conditions.\74\ Likewise, U.S. federal banking 
statutes generally prohibit inclusion of goodwill in the regulatory 
capital of insured depository institutions.\75\
---------------------------------------------------------------------------

    \74\ See 54 FR 4186, 4196 (1989) (Board); 54 FR 4168, 4175 
(1989) (OCC); 54 FR 11509 (FDIC).
    \75\ 12 U.S.C. 1828(n).
---------------------------------------------------------------------------

    Accordingly, under the proposal, goodwill and other intangible 
assets other than MSAs (for example, purchased credit card 
relationships (PCCRs) and non-mortgage servicing assets), net of 
associated deferred tax liabilities (DTLs), would be deducted from 
common equity tier 1 capital elements. Goodwill for purposes of this 
deduction would include any goodwill embedded in the valuation of 
significant investments in the capital of an unconsolidated financial 
institution in the form of common stock. Such deduction of embedded 
goodwill would apply to investments accounted for under the equity 
method. Under GAAP, if there is a difference between the initial cost 
basis of the investment and the amount of underlying equity in the net 
assets of the investee, the resulting difference should be accounted 
for as if the investee were a consolidated subsidiary (which may 
include imputed goodwill). Consistent with Basel III, these deductions 
would be taken from common equity tier 1 capital. Although MSAs are 
also intangibles, they are subject to a different treatment under Basel 
III and the proposal, as explained in this section.
DTAs
    As proposed, consistent with Basel III, a banking organization 
would deduct DTAs that arise from operating loss and tax credit 
carryforwards net of any related valuation allowances (and net of DTLs 
calculated as outlined in section 22(e) of the proposal) from common 
equity tier 1 capital elements because of the high degree of 
uncertainty regarding the ability of the banking organization to 
realize value from such DTAs.
    DTAs arising from temporary differences that the banking 
organization could not realize through net operating loss carrybacks 
net of any related valuation allowances and net of DTLs calculated as 
outlined in section 22(e) of the proposal (for example, DTAs resulting 
from the banking organization's ALLL), would be subject to strict 
limitations described in section 22(d) of the proposal because of 
concerns regarding a banking organization's ability to realize such 
DTAs.
    DTAs arising from temporary differences that the banking 
organization could realize through net operating loss carrybacks are 
not subject to deduction, and instead receive a 100 percent risk 
weight. For a banking organization that is a member of a consolidated 
group for tax purposes, the amount of DTAs that could be realized 
through net operating loss carrybacks may not exceed the amount that 
the banking organization could reasonably expect to have refunded by 
its parent holding company.
Gain-on-Sale Associated With a Securitization Exposure
    A banking organization would deduct from common equity tier 1 
capital elements any after-tax gain-on-sale associated with a 
securitization exposure. Under this proposal, gain-on-sale means an 
increase in the equity capital of a banking organization resulting from 
the consummation or issuance of a securitization (other than an 
increase in equity capital resulting from the banking organization's 
receipt of cash in connection with the securitization).
Defined Benefit Pension Fund Assets
    As proposed, defined benefit pension fund liabilities included on 
the balance sheet of a banking organization would be fully recognized 
in common equity tier 1 capital (that is, common equity tier 1 capital 
cannot be increased via the de-recognition of these liabilities). 
However, under the proposal, defined benefit pension fund assets 
(defined as excess assets of the pension fund that are reported on the 
banking organization's balance sheet due to its overfunded status), net 
of any associated DTLs, would be deducted in the calculation of common 
equity tier 1 capital given the high level of uncertainty regarding the 
ability of the banking organization to realize value from such assets.
    Consistent with Basel III, under the proposal, with supervisory 
approval, a banking organization would not be required to deduct a 
defined benefit fund assets to which the banking organization has 
unrestricted and unfettered access. In this case, the banking 
organization would assign to such assets the risk weight they would 
receive if they were directly owned by the banking organization. Under 
the proposal, unrestricted and unfettered access would mean that a 
banking organization is not required to request and receive specific 
approval from pension beneficiaries each time it would access excess 
funds in the plan.
    The FDIC has unfettered access to the excess assets of an insured 
depository institution's pension plan in the event of receivership. 
Therefore, the agencies have determined that generally an insured 
depository institution would not be required to deduct any assets 
associated with a defined benefit pension plan from common equity tier 
1 capital. Similarly, a holding company would not need to deduct any 
assets associated with a subsidiary insured depository institution's 
defined benefit pension plan from capital.
Activities by Savings Association Subsidiaries That Are Impermissible 
for National Banks
    As part of the OCC's overall effort to integrate the regulatory 
requirements for national banks and federal savings associations, the 
OCC is proposing to incorporate in the proposal a deduction requirement 
specifically applicable to federal savings association subsidiaries 
that engage in activities impermissible for national banks. Similarly, 
the FDIC is proposing to incorporate in the proposal a deduction 
requirement specifically applicable to state savings association 
subsidiaries that engage in activities impermissible for national 
banks. Section 5(t)(5) \76\ of HOLA requires a separate capital 
calculation for Federal savings associations for ``investments in and 
extensions of credit to any subsidiary engaged in activities not 
permissible for a national bank.'' This statutory provision is 
implemented through the definition of ``includable subsidiary'' as a 
deduction from the core capital of the federal savings association for 
those subsidiaries that are not ``includable subsidiaries.'' \77\ 
Specifically, where a subsidiary of a federal savings association 
engages in activities that are impermissible for national banks, the 
rules require the deconsolidation and deduction of the federal savings 
association's investment in the subsidiary from the assets and 
regulatory capital of the Federal savings association. If the 
activities of the federal savings association subsidiary are 
permissible for a national bank, then consistent with GAAP, the balance 
sheet of the subsidiary generally is consolidated with the balance 
sheet of the federal savings association.
---------------------------------------------------------------------------

    \76\ 12 U.S.C. 1464(t)(5).
    \77\ See 12 CFR 167.1; 12 CFR 167.5(a)(2)(iv).

---------------------------------------------------------------------------

[[Page 52819]]

    The OCC is proposing to carry over the general regulatory treatment 
of includable subsidiaries, with some technical modifications, by 
adding a new paragraph to section 22(a) of the proposal. The OCC notes 
that such treatment is consistent with how a national bank deducts its 
equity investments in financial subsidiaries. Under this proposal, 
investments (both debt and equity) by a federal savings association in 
a subsidiary that is not an ``includable subsidiary'' are required to 
be deducted (with certain exceptions) from the common equity tier 1 
capital of the federal savings association. Among other things, 
includable subsidiary is defined as a subsidiary of a federal savings 
association that engages solely in activities not impermissible for a 
national bank. Aside from a few technical modifications, this proposal 
is intended to carry over the current general regulatory treatment of 
includable subsidiaries for federal savings associations into the 
proposal.
    Question 28: The OCC and FDIC request comments on all aspects of 
this proposal to incorporate the current deduction requirement for 
federal and state, savings association subsidiaries that engage in 
activities impermissible for national banks. In particular, the OCC and 
FDIC are interested in whether this statutorily required deduction can 
be revised to reduce burden on federal and state savings associations.
2. Regulatory Adjustments to Common Equity Tier 1 Capital
Unrealized Gains and Losses on Certain Cash Flow Hedges
    Consistent with Basel III, the agencies are proposing that 
unrealized gains and losses on cash flow hedges that relate to the 
hedging of items that are not recognized at fair value on the balance 
sheet (including projected cash flows) be excluded from regulatory 
capital. That is, if the banking organization has an unrealized-net-
cash-flow-hedge gain, it would deduct it from common equity tier 1 
capital, and if it has an unrealized-net-cash-flow-hedge loss it would 
add it back to common equity tier 1 capital, net of applicable tax 
effects. That is, if the amount of the cash flow hedge is positive, a 
banking organization would deduct such amount from common equity tier 1 
capital elements, and if the amount is negative, a banking organization 
would add such amount to common equity tier 1 capital elements.
    This proposed regulatory adjustment would reduce the artificial 
volatility that can arise in a situation where the unrealized gain or 
loss of the cash flow hedge is included in regulatory capital but any 
change in the fair value of the hedged item is not. However, the 
agencies recognize that in a regulatory capital framework where 
unrealized gains and losses on AFS securities flow through to common 
equity tier 1 capital, the exclusion of unrealized cash flow hedge 
gains and losses might have an adverse effect on banking organizations 
that manage their interest rate risk by using cash flow hedges to hedge 
items that are not recognized on the balance sheet at fair value (for 
example, floating rate liabilities) and that are used to fund the 
banking organizations' AFS investment portfolios. In this scenario, a 
banking organization's regulatory capital could be adversely affected 
by fluctuations in a benchmark interest rate even if the banking 
organization's interest rate risk is effectively hedged because its 
unrealized gains and losses on the AFS securities would flow through to 
regulatory capital while its unrealized gains and losses on the cash 
flow hedges would not, resulting in a regulatory capital asymmetry.
    Question 29: How would a requirement to exclude unrealized net 
gains and losses on cash flow hedges related to the hedging of items 
that are not measured at fair value in the balance sheet (in the 
context of a framework where the unrealized gains and losses on AFS 
debt securities would flow through to regulatory capital) change the 
way banking organizations currently hedge against interest rate risk? 
Please explain and provide supporting data and analysis.
    Question 30: Could this adjustment potentially introduce excessive 
volatility in regulatory capital predominantly as a result of 
fluctuations in a benchmark interest rate for institutions that are 
effectively hedged against interest rate risk? Please explain and 
provide supporting data and analysis.
    Question 31: What are the pros and cons of an alternative treatment 
where floating rate liabilities are deemed to be fair valued for 
purposes of the proposed adjustment for unrealized gains and losses on 
cash flow hedges? Please explain and provide supporting data and 
analysis.
Changes in the Banking Organization's Creditworthiness
    The agencies believe that it would be inappropriate to allow 
banking organizations to increase their capital ratios as a result of a 
deterioration in their own creditworthiness, and are therefore 
proposing, consistent with Basel III, that banking organizations not be 
allowed to include in regulatory capital any change in the fair value 
of a liability that is due to changes in their own creditworthiness. 
Therefore, a banking organization would be required to deduct any 
unrealized gain from and add back any unrealized loss to common equity 
tier 1 capital elements due to changes in a banking organization's own 
creditworthiness. An advanced approaches banking organization would 
deduct from common equity tier 1 capital elements any unrealized gains 
associated with derivative liabilities resulting from the widening of a 
banking organization's credit spread premium over the risk free rate.
3. Regulatory Deductions Related to Investments in Capital Instruments
Deduction of Investments in own Regulatory Capital Instruments
    To avoid the double-counting of regulatory capital, under the 
proposal a banking organization would be required to deduct the amount 
of its investments in its own capital instruments, whether held 
directly or indirectly, to the extent such investments are not already 
derecognized from regulatory capital. Specifically, a banking 
organization would deduct its investment in its own common equity tier 
1, own additional tier 1 and own tier 2 capital instruments from the 
sum of its common equity tier 1, additional tier 1, and tier 2 capital 
elements, respectively. In addition, any common equity tier 1, 
additional tier 1 or tier 2 capital instrument issued by a banking 
organization which the banking organization could be contractually 
obliged to purchase would also be deducted from its common equity tier 
1, additional tier 1 or tier 2 capital elements, respectively. If a 
banking organization already deducts its investment in its own shares 
(for example, treasury stock) from its common equity tier 1 capital 
elements, it does not need to make such deduction twice.
    A banking organization would be required to look through its 
holdings of index securities to deduct investments in its own capital 
instruments. Gross long positions in investments in its own regulatory 
capital instruments resulting from holdings of index securities may be 
netted against short positions in the same underlying index. Short 
positions in indexes that are hedging long cash or synthetic positions 
may be decomposed to recognize the hedge. More specifically, the 
portion of the index that is composed of the same underlying exposure 
that is being hedged may be used to offset the long position only if 
both the exposure being hedged and the short position in the index are 
positions

[[Page 52820]]

subject to the market risk rule, the positions are fair valued on the 
banking organization's balance sheet, and the hedge is deemed effective 
by the banking organization's internal control processes, which have 
been assessed by the primary supervisor of the banking organization. If 
the banking organization finds it operationally burdensome to estimate 
the exposure amount as a result of an index holding, it may, with prior 
approval from the primary federal supervisor, use a conservative 
estimate. In all other cases, gross long positions would be allowed to 
be deducted net of short positions in the same underlying instrument 
only if the short positions involve no counterparty risk (for example, 
the position is fully collateralized or the counterparty is a 
qualifying central counterparty).
Definition of Financial Institution
    Consistent with Basel III, the proposal would require banking 
organizations to deduct investments in the capital of unconsolidated 
financial institutions where those investments exceed certain 
thresholds, as described further below. These deduction requirements 
are one of the measures included in Basel III designed to address 
systemic risk arising out of interconnectedness between banking 
organizations.
    Under the proposal, ``financial institution'' would mean bank 
holding companies, savings and loan holding companies, non-bank 
financial institutions supervised by the Board under Title I of the 
Dodd-Frank Act, depository institutions, foreign banks, credit unions, 
insurance companies, securities firms, commodity pools (as defined in 
the Commodity Exchange Act), covered funds under section 619 of the 
Dodd-Frank Act (and regulations issued thereunder), benefit plans, and 
other companies predominantly engaged in certain financial activities, 
as set forth in the proposal. See the definition of ``financial 
institution'' in section 2 of the proposed rules.
    The proposed definition is designed to include entities whose 
primary business is financial activities and therefore could contribute 
to risk in the financial system, including entities whose primary 
business is banking, insurance, investing, and trading, or a 
combination thereof. The proposed definition is also designed to align 
with similar definitions and concepts included in other rulemakings, 
including those funds that are covered by the restrictions of section 
13 of the Bank Holding Company Act. The proposed definition also 
includes a standard for ``predominantly engaged'' in financial 
activities similar to the standard from the Board's proposed rule to 
define ``predominantly engaged in financial activities'' for purposes 
of Title I of the Dodd-Frank Act.\78\ Likewise, the proposed definition 
seeks to exclude firms that are predominantly engaged in activities 
that have a financial nature but are focused on community development, 
public welfare projects, and similar objectives.
---------------------------------------------------------------------------

    \78\ 76 FR 7731 (February 11, 2011) and 77 FR 21494 (April 10, 
2012).
---------------------------------------------------------------------------

    Question 32: The agencies seek comment on the proposed definition 
of financial institution. The agencies have sought to achieve 
consistency in the definition of financial institution with similar 
definitions proposed in other proposed regulations. The agencies seek 
comment on the appropriateness of this standard for purposes of the 
proposal and whether a different threshold, such as greater than 50 
percent, would be more appropriate. The agencies ask that commenters 
provide detailed explanations in their responses.
The Corresponding Deduction Approach
    The proposal incorporates the Basel III corresponding deduction 
approach for the deductions from regulatory capital related to 
reciprocal cross holdings, non-significant investments in the capital 
of unconsolidated financial institutions, and non-common stock 
significant investments in the capital of unconsolidated financial 
institutions. Under this approach a banking organization would be 
required to make any such deductions from the same component of capital 
for which the underlying instrument would qualify if it were issued by 
the banking organization itself. If a banking organization does not 
have a sufficient amount of a specific regulatory capital component to 
effect the deduction, the shortfall would be deducted from the next 
higher (that is, more subordinated) regulatory capital component. For 
example, if a banking organization does not have enough additional tier 
1 capital to satisfy the required deduction from additional tier 1 
capital, the shortfall would be deducted from common equity tier 1 
capital.
    If the banking organization invests in an instrument issued by a 
non-regulated financial institution, the banking organization would 
treat the instrument as common equity tier 1 capital if the instrument 
is common stock (or if it is otherwise the most subordinated form of 
capital of the financial institution) and as additional tier 1 capital 
if the instrument is subordinated to all creditors of the financial 
institution except common shareholders. If the investment is in the 
form of an instrument issued by a regulated financial institution and 
the instrument does not meet the criteria for any of the regulatory 
capital components for banking organizations, the banking organization 
would treat the instrument as (1) Common equity tier 1 capital if the 
instrument is common stock included in GAAP equity or represents the 
most subordinated claim in liquidation of the financial institution; 
(2) additional tier 1 capital if the instrument is GAAP equity and is 
subordinated to all creditors of the financial institution and is only 
senior in liquidation to common shareholders; and (3) tier 2 capital if 
the instrument is not GAAP equity but it is considered regulatory 
capital by the primary regulator of the financial institution.
Deduction of Reciprocal Cross Holdings in the Capital Instruments of 
Financial Institutions
    A reciprocal cross holding results from a formal or informal 
arrangement between two financial institutions to swap, exchange, or 
otherwise intend to hold each other's capital instruments. The use of 
reciprocal cross holdings of capital instruments to artificially 
inflate the capital positions of each of the banking organizations 
involved would undermine the purpose of regulatory capital, potentially 
affecting the stability of such banking organizations as well as the 
financial system.
    Under the agencies' general risk-based capital rules, reciprocal 
holdings of capital instruments of banking organizations are deducted 
from regulatory capital. Consistent with Basel III, the proposal would 
require a banking organization to deduct reciprocal holdings of capital 
instruments of other financial institutions, where these investments 
are made with the intention of artificially inflating the capital 
positions of the banking organizations involved. The deductions would 
be made by using the corresponding deduction approach.
Determining the Exposure Amount for Investments in the Capital of 
Unconsolidated Financial Institutions
    Under the proposal, the exposure amount of an investment in the 
capital of an unconsolidated financial institution would refer to a net 
long position in an instrument that is recognized as capital for 
regulatory purposes by the primary supervisor of an unconsolidated 
regulated financial institution or in an instrument that is part of the 
GAAP equity of an unconsolidated unregulated financial

[[Page 52821]]

institution. It would include direct, indirect, and synthetic exposures 
to capital instruments, and exclude underwriting positions held by the 
banking organization for five business days or less. It would be 
equivalent to the banking organization's potential loss on such 
exposure should the underlying capital instrument have a value of zero.
    The net long position would be the gross long position in the 
exposure (including covered positions under the market risk capital 
rules) net of short positions in the same exposure where the maturity 
of the short position either matches the maturity of the long position 
or has a residual maturity of at least one year. The long and short 
positions in the same index without a maturity date would be considered 
to have matching maturities. For covered positions under the market 
risk capital rules, if a banking organization has a contractual right 
or obligation to sell a long position at a specific point in time, and 
the counterparty in the contract has an obligation to purchase the long 
position if the banking organization exercises its right to sell, this 
point in time may be treated as the maturity of the long position. 
Therefore, if these conditions are met, the maturity of the long 
position and the short position would be deemed to be matched even if 
the maturity of the short position is less than one year.
    Gross long positions in investments in the capital instruments of 
unconsolidated financial institutions resulting from holdings of index 
securities may be netted against short positions in the same underlying 
index. However, short positions in indexes that are hedging long cash 
or synthetic positions may be decomposed to recognize the hedge. More 
specifically, the portion of the index that is composed of the same 
underlying exposure that is being hedged may be used to offset the long 
position as long as both the exposure being hedged and the short 
position in the index are positions subject to the market risk rule, 
the positions are fair valued on the banking organization's balance 
sheet, and the hedge is deemed effective by the banking organization's 
internal control processes assessed by the primary supervisor of the 
banking organization. Also, instead of looking through and monitoring 
its exact exposure to the capital of other financial institutions 
included in an index security, a banking organization may be permitted, 
with the prior approval of its primary federal supervisor, to use a 
conservative estimate of the amount of its investments in the capital 
instruments of other financial institutions through the index security.
    An indirect exposure would result from the banking organization's 
investment in an unconsolidated entity that has an exposure to a 
capital instrument of a financial institution. A synthetic exposure 
results from the banking organization's investment in an instrument 
where the value of such instrument is linked to the value of a capital 
instrument of a financial institution. Examples of indirect and 
synthetic exposures would include: (1) An investment in the capital of 
an unconsolidated entity that has an investment in the capital of an 
unconsolidated financial institution; (2) a total return swap on a 
capital instrument of another financial institution; (3) a guarantee or 
credit protection, provided to a third party, related to the third 
party's investment in the capital of another financial institution; (4) 
a purchased call option or a written put option on the capital 
instrument of another financial institution; and (5) a forward purchase 
agreement on the capital of another financial institution.
    Investments, including indirect and synthetic exposures, in the 
capital of unconsolidated financial institutions would be subject to 
the corresponding deduction approach if they surpass certain thresholds 
described below. With the prior written approval of the primary federal 
supervisor, for the period of time stipulated by the supervisor, a 
banking organization would not be required to deduct investments in the 
capital of unconsolidated financial institutions described in this 
section if the investment is made in connection with the banking 
organization providing financial support to a financial institution in 
distress. Likewise, a banking organization that is an underwriter of a 
failed underwriting can request approval from its primary federal 
supervisor to exclude underwriting positions related to such failed 
underwriting for a longer period of time.
    Question 33: The agencies solicit comments on the scope of indirect 
exposures for purposes of determining the exposure amount for 
investments in the capital of unconsolidated financial institutions. 
Specifically, what parameters (for example, a specific percentage of 
the issued and outstanding common shares of the unconsolidated 
financial institution) would be appropriate for purposes of limiting 
the scope of indirect exposures in this context and why?
    Question 34: What are the pros and cons of the proposed exclusion 
from the exposure amount of an investment in the capital of an 
unconsolidated financial institution for underwriting positions held by 
the banking organization for 5 business days or fewer? Would limiting 
the exemption to 5 days affect banking organizations' willingness to 
underwrite stock offerings by smaller banking organizations? Please 
provide data to support your answer.
Deduction of Non-Significant Investments in the Capital of 
Unconsolidated Financial Institutions
    Under the proposal, non-significant investments in the capital of 
unconsolidated financial institutions would be investments where a 
banking organization owns 10 percent or less of the issued and 
outstanding common shares of an unconsolidated financial institution.
    Under the proposal, if the aggregate amount of a banking 
organization's non-significant investments in the capital of 
unconsolidated financial institutions exceeds 10 percent of the sum of 
the banking organization's common equity tier 1 capital elements, minus 
certain applicable deductions and other regulatory adjustments to 
common equity tier 1 capital (the 10 percent threshold for non-
significant investments), the banking organization would have to deduct 
the amount of the non-significant investments that are above the 10 
percent threshold for non-significant investments, applying the 
corresponding deduction approach.\79\
---------------------------------------------------------------------------

    \79\ The regulatory adjustments and deductions applied in the 
calculation of the 10 percent threshold for non-significant 
investments are those required under sections 22(a) through 22(c)(3) 
of the proposal. That is, the required deductions and adjustments 
for goodwill and other intangibles (other than MSAs) net of 
associated DTLs, DTAs that arise from operating loss and tax credit 
carryforwards net of related valuation allowances and DTLs (as 
described below), cash flow hedges associated with items that are 
not reported at fair value, excess ECLs (for advanced approaches 
banking organizations only), gains-on-sale on securitization 
exposures, gains and losses due to changes in own credit risk on 
fair valued financial liabilities, defined benefit pension fund net 
assets for banking organizations that are not insured by the FDIC 
(net of associated DTLs), investments in own regulatory capital 
instruments (not deducted as treasury stock), and reciprocal cross 
holdings.
---------------------------------------------------------------------------

    The amount to be deducted from a specific capital component would 
be equal to the amount of a banking organization's non-significant 
investments in the capital of unconsolidated financial institutions 
exceeding the 10 percent threshold for non-significant investments 
multiplied by the ratio of (1) the amount of non-significant 
investments in the capital of

[[Page 52822]]

unconsolidated financial institutions in the form of such capital 
component to (2) the amount of the banking organization's total non-
significant investments in the capital of unconsolidated financial 
institutions. The amount of a banking organization's non-significant 
investments in the capital of unconsolidated financial institutions 
that does not exceed the 10 percent threshold for non-significant 
investments would generally be assigned the applicable risk weight 
under sections 32 (in the case of non-common stock instruments), 52 (in 
the case of common stock instruments), or 53 (in the case of indirect 
investments via a mutual fund) of the proposal, as appropriate.
    For example, if a banking organization has a total of $200 in non-
significant investments in the capital of unconsolidated financial 
institutions (of which 50 percent is in the form of common stock, 30 
percent is in the form of an additional tier 1 capital instrument, and 
20 percent is in the form of tier 2 capital subordinated debt) and $100 
of these investments exceed the 10 percent threshold for non-
significant investments, the banking organization would need to deduct 
$50 from its common equity tier 1 capital elements, $30 from its 
additional tier 1 capital elements and $20 from its tier 2 capital 
elements.
Deduction of Significant Investments in the Capital of Unconsolidated 
Financial Institutions That Are Not in the Form of Common Stock
    Under the proposal, a significant investment of a banking 
organization in the capital of an unconsolidated financial institution 
would be an investment where the banking organization owns more than 10 
percent of the issued and outstanding common shares of the 
unconsolidated financial institution. Significant investments in the 
capital of unconsolidated financial institutions that are not in the 
form of common stock would be deducted applying the corresponding 
deduction approach described previously. Significant investments in the 
capital of unconsolidated financial institutions that are in the form 
of common stock would be subject to the common equity deduction 
threshold approach described in section III.B.4 of this preamble.
    Section 121 of the Graham-Leach-Bliley Act (GLBA) allows national 
banks and insured state banks to establish entities known as financial 
subsidiaries.\80\ One of the statutory requirements for establishing a 
financial subsidiary is that a national bank or insured state bank must 
deduct any investment in a financial subsidiary from the bank's 
capital.\81\ The agencies implemented this statutory requirement 
through regulation at 12 CFR 5.39(h)(1) (OCC), 12 CFR 208.73 (Board), 
and 12 CFR 362.18 (FDIC). Under the agencies' current rules, a bank 
must deduct the aggregate amount of its outstanding equity investment, 
including retained earnings, in its financial subsidiaries from its 
total assets and tangible equity, and deduct such investment from its 
total risk-based capital (made equally from tier 1 and tier 2 capital).
---------------------------------------------------------------------------

    \80\ Public Law 106-102, 113 Stat. 1338, 1373 (Nov. 12, 1999).
    \81\ 12 U.S.C. 24a(c); 12 U.S.C. 1831w(a)(2).
---------------------------------------------------------------------------

    Under the NPR, investments by a national bank or insured state bank 
in financial subsidiaries would be deducted entirely from the bank's 
common equity tier 1 capital.\82\ Because common equity tier 1 capital 
is a component of tangible equity, the proposed deduction from common 
equity tier 1 would automatically result in a deduction from tangible 
equity. The agencies believe that the more conservative treatment is 
appropriate for financial subsidiaries, given the risks associated with 
nonbanking activities.
---------------------------------------------------------------------------

    \82\ The deduction provided for in the agencies' existing 
regulations would be removed.
---------------------------------------------------------------------------

4. Items Subject to the 10 and 15 Percent Common Equity Tier 1 Capital 
Threshold Deductions
    Under the proposal, a banking organization would deduct from the 
sum of its common equity tier 1 capital elements the amount of each of 
the following items that individually exceeds the 10 percent common 
equity tier 1 capital deduction threshold described below: (1) DTAs 
arising from temporary differences that could not be realized through 
net operating loss carrybacks (net of any related valuation allowances 
and net of DTLs, as described in section 22(e) of the proposal); (2) 
MSAs net of associated DTLs; and (3) significant investments in the 
capital of financial institutions in the form of common stock (referred 
to herein as items subject to the threshold deductions).
    A banking organization would calculate the 10 percent common equity 
tier 1 capital deduction threshold by taking 10 percent of the sum of a 
banking organization's common equity tier 1 elements, less adjustments 
to, and deductions from common equity tier 1 capital required under 
sections 22(a) through (c) of the proposal.\83\
---------------------------------------------------------------------------

    \83\ The regulatory adjustments and deductions applied in the 
calculation of the 10 percent common equity deduction threshold are 
those required under sections 22(a) through (c) of the proposal. 
That is, the required deductions and adjustments for goodwill and 
other intangibles (other than MSAs) net of associated DTLs, DTAs 
that arise from operating loss and tax credit carryforwards net of 
related valuation allowances and DTLs (as described below), cash 
flow hedges associated with items that are not reported at fair 
value, excess ECLs (for advanced approaches banking organizations 
only), gains-on-sale on securitization exposures, gains and losses 
due to changes in own credit risk on fair valued financial 
liabilities, defined benefit pension fund net assets for banking 
organizations that are not insured by the FDIC (net of associated 
DTLs), investments in own regulatory capital instruments (not 
deducted as treasury stock), reciprocal cross holdings, non-
significant investments in the capital of unconsolidated financial 
institutions, and, if applicable, significant investments in the 
capital of unconsolidated financial institutions that are not in the 
form of common stock.
---------------------------------------------------------------------------

    As mentioned above, banking organizations would deduct from common 
equity tier 1 capital elements any goodwill embedded in the valuation 
of significant investments in the capital of unconsolidated financial 
institutions in the form of common stock. Therefore, a banking 
organization would be allowed to net such embedded goodwill against the 
exposure amount of such significant investment. For example, if a 
banking organization has deducted $10 of goodwill embedded in a $100 
significant investment in the capital of an unconsolidated financial 
institution in the form of common stock, the banking organization would 
be allowed to net such embedded goodwill against the exposure amount of 
such significant investment (that is, the value of the investment would 
be $90 for purposes of the calculation of the amount that would be 
subject to deduction under this part of the proposal).
    In addition, the aggregate amount of the items subject to the 
threshold deductions that are not deducted as a result of the 10 
percent common equity tier 1 capital deduction threshold described 
above would not be permitted to exceed 15 percent of a banking 
organization's common equity tier 1 capital, as calculated after 
applying all regulatory adjustments and deductions required under the 
proposal (the 15 percent common equity tier 1 capital deduction 
threshold). That is, a banking organization would be required to deduct 
the amounts of the items subject to the threshold deductions that 
exceed 17.65 percent (the proportion of 15 percent to 85 percent) of 
common equity tier 1 capital elements, less all regulatory adjustments 
and deductions required for the calculation of the 10 percent common 
equity tier 1 capital deduction threshold mentioned above, and less the 
items subject to the 10 and 15 percent common equity tier 1 capital

[[Page 52823]]

deduction thresholds in full. As described below, banking organization 
would be required to include the amounts of these three items that are 
not deducted from common equity tier 1 capital in its risk-weighted 
assets and assign a 250 percent risk weight to them.
    Under section 475 of the Federal Deposit Insurance Corporation 
Improvement Act of 1991 (12 U.S.C. 1828 note), the amount of readily 
marketable MSAs that a banking organization may include in regulatory 
capital cannot be valued at more than 90 percent of their fair market 
value \84\ and the fair market value of such MSAs must be determined at 
least on a quarterly basis. Therefore, if the amount of MSAs a banking 
organization deducts after the application of the 10 percent and 15 
percent common equity tier 1 deduction threshold is less than 10 
percent of the fair value of its MSAs, the banking organization must 
deduct an additional amount of MSAs so that the total amount of MSAs 
deducted is at least 10 percent of the fair value of its MSAs.
---------------------------------------------------------------------------

    \84\ Section 475 also provides that mortgage servicing rights 
may be valued at more than 90 percent of their fair market value but 
no more than 100 percent of such value, if the agencies jointly make 
a finding that such valuation would not have an adverse effect on 
the deposit insurance funds or the safety and soundness of insured 
depository institutions. The agencies have not made such a finding.
---------------------------------------------------------------------------

    Question 35: The agencies solicit comments and supporting data on 
the additional regulatory capital deductions outlined in this section 
above.
5. Netting of DTLs Against DTAs and Other Deductible Assets
    Under the proposal, the netting of DTLs against assets (other than 
DTAs) that are subject to deduction under section 22 of the proposal 
would be permitted provided the DTL is associated with the asset and 
the DTL would be extinguished if the associated asset becomes impaired 
or is derecognized under GAAP. Likewise, banking organizations would be 
prohibited from using the same DTL for netting purposes more than once. 
This practice would be generally consistent with the approach that the 
agencies currently take with respect to the netting of DTLs against 
goodwill.
    With respect to the netting of DTLs against DTAs, the amount of 
DTAs that arise from operating loss and tax credit carryforwards, net 
of any related valuation allowances, and the amount of DTAs arising 
from temporary differences that the banking organization could not 
realize through net operating loss carrybacks, net of any related 
valuation allowances, would be allowed to be netted against DTLs if the 
following conditions are met. First, only the DTAs and DTLs that relate 
to taxes levied by the same taxation authority and that are eligible 
for offsetting by that authority would be offset for purposes of this 
deduction. And second, the amount of DTLs that the banking organization 
would be able to net against DTAs that arise from operating loss and 
tax credit carryforwards, net of any related valuation allowances, and 
against DTAs arising from temporary differences that the banking 
organization could not realize through net operating loss carrybacks, 
net of any related valuation allowances, would be allocated in 
proportion to the amount of DTAs that arise from operating loss and tax 
credit carryforwards (net of any related valuation allowances, but 
before any offsetting of DTLs) and of DTAs arising from temporary 
differences that the banking organization could not realize through net 
operating loss carrybacks (net of any related valuation allowances, but 
before any offsetting of DTLs), respectively.
6. Deduction From Tier 1 Capital of Investments in Hedge Funds and 
Private Equity Funds Pursuant to Section 619 of the Dodd-Frank Act
    Section 619 of the Dodd-Frank Act (the Volcker Rule) contains a 
number of restrictions and other prudential requirements applicable to 
any ``banking entity'' \85\ that engages in proprietary trading or has 
certain interests in, or relationships with, a hedge fund or a private 
equity fund.\86\
---------------------------------------------------------------------------

    \85\ The term ``banking entity'' is defined in section 13(h)(1) 
of the Bank Holding Company Act (BHC Act), as amended by section 619 
of the Dodd-Frank Act. See 12 U.S.C. 1851(h)(1). The statutory 
definition includes any insured depository institution (other than 
certain limited purpose trust institutions), any company that 
controls an insured depository institution, any company that is 
treated as a bank holding company for purposes of section 8 of the 
International Banking Act of 1978 (12 U.S.C. 3106), and any 
affiliate or subsidiary of any of the foregoing.
    \86\ Section 13 of the BHC Act defines the terms ``hedge fund'' 
and ``private equity fund'' as ``an issuer that would be an 
investment company, as defined in the Investment Company Act of 1940 
(15 U.S.C. 80a-1 et seq.), but for section 3(c)(1) or 3(c)(7) of 
that Act, or such similar funds as the appropriate Federal banking 
agencies, the Securities and Exchange Commission, and the 
Commodities Futures Trading Commission may, by rule, * * * 
determine.'' See 12 U.S.C. 1851(h)(2).
---------------------------------------------------------------------------

    Section 13(d)(3) of the Bank Holding Company Act, as added by the 
Volcker Rule, provides that the agencies ``shall * * * adopt rules 
imposing additional capital requirements and quantitative limitations, 
including diversification requirements, regarding activities permitted 
under the Volcker Rule if the appropriate Federal banking agencies, the 
Securities and Exchange Commission, and the Commodity Future Trading 
Commission determine that additional capital and quantitative 
limitations are appropriate to protect the safety and soundness of 
banking entities engaged in such activities.''
    The Volcker Rule also added section 13(d)(4)(B)(iii) to the Bank 
Holding Company Act, which pertains to ownership interests in a hedge 
fund or private equity fund organized and offered by a banking entity 
(or an affiliate or subsidiary thereof) and provides, ``For the 
purposes of determining compliance with the applicable capital 
standards under paragraph (3), the aggregate amount of the outstanding 
investments by a banking entity under this paragraph, including 
retained earnings, shall be deducted from the assets and tangible 
equity of the banking entity, and the amount of the deduction shall 
increase commensurate with the leverage of the hedge fund or private 
equity fund.''
    In October 2011, the agencies and the SEC issued a proposal to 
implement the Volcker Rule (the Volcker Rule proposal).\87\ Section 
12(d) of the Volcker Rule proposal included a provision that would 
require a ``banking entity'' to deduct from tier 1 capital its 
investments in a hedge fund or a private equity fund that the banking 
entity organizes and offers pursuant to the Volcker rule as provided by 
section 13(d)(3) and (4)(B)(iii) of the Bank Holding Company Act.
---------------------------------------------------------------------------

    \87\ The agencies sought public comment on the Volcker Rule 
proposal on October 11, 2011, and the Securities and Exchange 
Commission sought public comment on the same proposal on October 12, 
2011. See 76 FR 68846 (Nov. 7, 2011). On January 11, 2012, the 
Commodities Futures Trading Commission requested comment on a 
substantively similar proposed rule implementing section 13 of the 
BHC Act. See 77 FR 8332 (Feb. 14, 2012).
---------------------------------------------------------------------------

    Under the Volcker Rule proposal, a banking organization subject to 
the Volcker Rule \88\ would be required to deduct from tier 1 capital 
the aggregate value of its investments in hedge funds and private 
equity funds that the banking organization organizes and offers 
pursuant to section 13(d)(1)(G) of the Bank Holding Company Act. As 
proposed, the Volcker Rule deduction would not apply to an ownership 
interest in a hedge fund or private

[[Page 52824]]

equity fund held by a banking entity pursuant to any of the exemption 
activity categories in section 13(d)(1) of the Bank Holding Company 
Act. For instance, a banking entity that acquires or retains an 
investment in a small business investment company or an investment 
designed to promote the public welfare of the type permitted under 12 
U.S.C. 24 (Eleventh), which are specifically permitted under section 
13(d)(1)(E) of the Bank Holding Company Act, would not be required to 
deduct the value of such ownership interest from its tier 1 capital.
---------------------------------------------------------------------------

    \88\ The Volcker rule regulations apply to ``banking entities,'' 
as defined in section 13(h)(1) of the Bank Holding Company Act (BHC 
Act), as amended by section 619 of the Dodd-Frank Act. This term 
generally includes all banking organizations subject to the Federal 
banking agencies' capital regulations with the exception of limited 
purpose trust institutions that are not affiliated with a depository 
institution or bank holding company.
---------------------------------------------------------------------------

    The agencies believe that this proposed capital requirement, as it 
applies to banking organizations, should be considered within the 
context of the agencies' entire regulatory capital framework, so that 
its potential interaction with all other regulatory capital 
requirements is assessed fully. The agencies intend to avoid 
prescribing overlapping regulatory capital requirements for the same 
exposures. Therefore, once the regulatory capital requirements 
prescribed by the Volcker Rule are finalized, the Federal banking 
agencies expect to amend the regulatory capital treatment for 
investments in the capital of an unconsolidated financial institution--
currently set forth in section 22 of the proposal--to include the 
deduction that would be required under the Volcker Rule. Exposures 
subject to that deduction would not also be subject to the capital 
requirements for investments in the capital of an unconsolidated 
financial institution nor would they be considered for the purpose of 
determining the relevant thresholds for the deductions from regulatory 
capital required for investments in the capital of an unconsolidated 
financial institution.

IV. Denominator Changes Related to the Proposed Regulatory Changes

    Consistent with Basel III, for purposes of calculating total risk-
weighted assets, the proposal would require a banking organization to 
assign a 250 percent risk weight to (1) MSAs, (2) DTAs arising from 
temporary differences that a banking organization could not realize 
through net operating loss carrybacks (net of any related valuation 
allowances and net of DTLs, as described in section 22(e) of the 
proposal), and (3) significant investments in the capital of 
unconsolidated financial institutions in the form of common stock that 
are not deducted from tier 1 capital pursuant to section 22 of the 
proposal.
    Basel III also requires banking organizations to apply a 1,250 
percent risk weight to certain exposures that are deducted from total 
capital under the general risk-based capital rules. Accordingly, for 
purposes of calculating total risk-weighted assets, the proposal would 
require a banking organization to apply a 1,250 percent risk weight to 
the portion of a credit-enhancing interest-only strips that does not 
constitute an after-tax-gain-on-sale. A banking organization would not 
be required to deduct such exposures from regulatory capital.

V. Transitions Provisions

    The main goal of the transition provisions is to give banking 
organizations sufficient time to adjust to the proposal while 
minimizing the potential impact that implementation could have on their 
ability to lend. The proposed transition provisions have been designed 
to ensure compliance with the Dodd-Frank Act. As a result, they could, 
in certain circumstances, be more stringent than the transitional 
arrangements proposed in Basel III.
    The transition provisions would apply to the following areas: (1) 
The minimum regulatory capital ratios; (2) the capital conservation and 
countercyclical capital buffers; (3) the regulatory capital adjustments 
and deductions; and (4) non-qualifying capital instruments. In the 
Standardized Approach NPR, the agencies are proposing changes to the 
calculation of risk-weighted assets that would be effective January 1, 
2015, with an option to early adopt.

A. Minimum Regulatory Capital Ratios

    The transition period for the minimum common equity tier 1 and tier 
1 capital ratios is from January 1, 2013 to December 31, 2014 as set 
forth below.

             Table 9--Transition for Minimum Capital Ratios
------------------------------------------------------------------------
    Transition Minimum Common Equity Tier 1 and Tier 1 Capital Ratios
-------------------------------------------------------------------------
                                         Common equity
           Transition period             tier 1 capital   Tier 1 capital
                                             ratio            ratio
------------------------------------------------------------------------
Calendar year 2013....................              3.5              4.5
Calendar year 2014....................              4.0              5.5
Calendar year 2015 and thereafter.....              4.5              6.0
------------------------------------------------------------------------

    The minimum common equity tier 1 and tier 1 capital ratios, as well 
as the minimum total capital ratio, will be calculated during the 
transition period using the definitions for the respective capital 
components in section 20 of the proposed rule and using the proposed 
transition provisions for the regulatory adjustments and deductions and 
for the non-qualifying capital instruments described in this section.

B. Capital Conservation and Countercyclical Capital Buffer

    As explained in more detail in section 11 of the proposed rule, a 
banking organization's applicable capital conservation buffer would be 
the lowest of the following three ratios: the banking organization's 
common equity tier 1, tier 1 and total capital ratio less its minimum 
common equity tier 1, tier 1 and total capital ratio requirement, 
respectively. Table 10 shows the regulatory capital levels banking 
organizations would generally need to meet during the transition period 
to avoid becoming subject to limitations on capital distributions and 
discretionary bonus payments from January 1, 2016 until January 1, 
2019.

[[Page 52825]]



                                  Table 10--Proposed Regulatory Capital Levels
----------------------------------------------------------------------------------------------------------------
                                Jan. 1,     Jan. 1,     Jan. 1,     Jan. 1,     Jan. 1,     Jan. 1,     Jan. 1,
                                 2013        2014        2015        2016        2017        2018        2019
                               (percent)   (percent)   (percent)   (percent)   (percent)   (percent)   (percent)
----------------------------------------------------------------------------------------------------------------
Capital conservation buffer.  ..........  ..........  ..........       0.625        1.25       1.875         2.5
Minimum common equity tier 1         3.5         4.0         4.5       5.125        5.75       6.375         7.0
 capital ratio + capital
 conservation buffer........
Minimum tier 1 capital ratio         4.5         5.5         6.0       6.625        7.25       7.875         8.5
 + capital conservation
 buffer.....................
Minimum total capital ratio          8.0         8.0         8.0       8.625        9.25       9.875        10.5
 + capital conservation
 buffer.....................
Maximum potential             ..........  ..........  ..........       0.625        1.25       1.875         2.5
 countercyclical capital
 buffer.....................
----------------------------------------------------------------------------------------------------------------

    Banking organizations would not be subject to the capital 
conservation and the countercyclical capital buffer until January 1, 
2016. From January 1, 2016 through December 31, 2018, banking 
organizations would be subject to transitional arrangements with 
respect to the capital conservation and countercyclical capital buffers 
as outlined in more detail in table 11.

     Table 11--Transition Provision for the Capital Conservation and
                     Countercyclical Capital Buffer
------------------------------------------------------------------------
                                 Capital conservation    Maximum payout
                                  buffer  (assuming a     ratio  (as a
       Transition period            countercyclical       percentage of
                                   capital buffer of        eligible
                                         zero)          retained income)
------------------------------------------------------------------------
Calendar year 2016............  Greater than 0.625      No payout ratio
                                 percent.                limitation
                                                         applies
                                Less than or equal to   60 percent
                                 0.625 percent, and
                                 greater than 0.469
                                 percent.
                                Less than or equal to   40 percent
                                 0.469 percent, and
                                 greater than 0.313
                                 percent.
                                Less than or equal to   20 percent
                                 0.313 percent, and
                                 greater than 0.156
                                 percent.
                                Less than or equal to   0 percent
                                 0.156 percent.
------------------------------------------------------------------------
Calendar year 2017............  Greater than 1.25       No payout ratio
                                 percent.                limitation
                                                         applies
                                Less than or equal to   60 percent
                                 1.25 percent, and
                                 greater than 0.938
                                 percent.
                                Less than or equal to   40 percent
                                 0.938 percent, and
                                 greater than 0.625
                                 percent.
                                Less than or equal to   20 percent
                                 0.625 percent, and
                                 greater than 0.313
                                 percent.
                                Less than or equal to   0 percent
                                 0.313 percent.
------------------------------------------------------------------------
Calendar year 2018............  Greater than 1.875      No payout ratio
                                 percent.                limitation
                                                         applies
                                Less than or equal to   60 percent
                                 1.875 percent, and
                                 greater than 1.406
                                 percent.
                                Less than or equal to   40 percent
                                 1.406 percent, and
                                 greater than 0.938
                                 percent.
                                Less than or equal to   20 percent
                                 0.938 percent, and
                                 greater than 0.469
                                 percent.
                                Less than or equal to   0 percent
                                 0.469 percent.
------------------------------------------------------------------------

    As illustrated in table 11, from January 1, 2016 through December 
31, 2016, a banking organization would be able to make capital 
distributions and discretionary bonus payments without limitation under 
this section as long as it maintains a capital conservation buffer 
greater than 0.625 percent (plus for an advanced approaches banking 
organization, any applicable countercyclical capital buffer amount). 
From January 1, 2017 through December 31, 2017, a banking organization 
would be able to make capital distributions and discretionary bonus 
payments without limitation under this section as long as it maintains 
a capital conservation buffer greater than 1.25 percent (plus for an 
advanced approaches banking organization, any applicable 
countercyclical capital buffer amount). From January 1, 2018 through 
December 31, 2018, a banking organization would be able to make capital 
distributions and discretionary bonus payments without limitation under 
this section as long as it maintains a capital conservation buffer 
greater than 1.875 percent (plus for an advanced approaches banking 
organization, any applicable countercyclical capital buffer amount). 
From January 1, 2019 onward, a banking organization would be able to 
make capital distributions and discretionary bonus payments without 
limitation under this section as long as it maintains a capital 
conservation buffer greater than 2.5 percent (plus for an advanced 
approaches banking organization, 100 percent of the applicable 
countercyclical capital buffer amount).
    For example, if a banking organization's capital conservation 
buffer is 1.0 percent (for example, its common equity tier 1 capital 
ratio is 5.5 percent or its tier 1 capital ratio is 7.0 percent) as of 
December 31, 2017, the banking organization's maximum payout ratio 
during the first quarter of 2018 would be 60 percent. If a banking 
organization has a capital conservation buffer of 0.25 percent as of 
December 31, 2017, the banking organization would not be allowed to 
make capital distributions and discretionary bonus payments during the 
first quarter of 2018 under the proposed transition provisions. If a 
banking organization has a capital conservation buffer of 1.5 percent 
as of December 31, 2017, it would not have any restrictions under this 
section on the amount of capital distributions and discretionary bonus 
payments during the first quarter of 2018.
    If applicable, the countercyclical capital buffer would be phased-
in according to the transition schedule described in table 11 by 
proportionately expanding each of the quartiles in the table by the 
countercyclical capital buffer amount. The maximum countercyclical 
capital buffer amount would be 0.625 percent on January 1, 2016 and 
would increase each subsequent year by an additional 0.625

[[Page 52826]]

percentage points, to reach its fully phased-in maximum of 2.5 percent 
on January 1, 2019.

C. Regulatory Capital Adjustments and Deductions

    Banking organizations are currently subject to a series of 
deductions from and adjustments to regulatory capital, most of which 
apply at the tier 1 capital level, including deductions for goodwill, 
MSAs, certain DTAs, and adjustments for net unrealized gains and losses 
on AFS securities and for accumulated net gains and losses on cash flow 
hedges and defined benefit pension obligations. Under section 22 of the 
proposed rule, banking organizations would become subject to a series 
of deductions and adjustments, the bulk of which will be applied at the 
common equity tier 1 capital level. In order to give sufficient time to 
banking organizations to adapt to the new regulatory capital 
adjustments and deductions, the proposed rule incorporates transition 
provisions for such adjustments and deductions. From January 1, 2013 
through December 31, 2017, a banking organization would be required to 
make the regulatory capital adjustments to and deductions from 
regulatory capital in section 22 of the proposed rule in accordance 
with the proposed transition provisions for such adjustments and 
deductions outlined below. Starting on January 1, 2018, banking 
organizations would apply all regulatory capital adjustments and 
deductions as outlined in section 22 of the proposed rule.
Deductions for Certain Items in Section 22(a) of the Proposed Rule
    From January 1, 2013 through December 31, 2017, a banking 
organization would deduct from common equity tier 1 or from tier 1 
capital elements goodwill (section 22(a)(1)), DTAs that arise from 
operating loss and tax credit carryforwards (section 22(a)(3)), gain-
on-sale associated with a securitization exposure (section 22(a)(4)), 
defined benefit pension fund assets (section 22(a)(5)), and expected 
credit loss that exceeds eligible credit reserves for the case of 
banking organizations subject to subpart E of the proposed rule 
(section 22(a)(6)), in accordance with table 12 below. During this 
period, any of these items that are not deducted from common equity 
tier 1 capital, are deducted from tier 1 capital instead.

  Table 12--Proposed Transition Deductions Under Section 22(a)(1) and Sections 22(a)(3)-(a)(6) of the Proposal
----------------------------------------------------------------------------------------------------------------
                                             Transition deductions      Transition deductions under sections
                                                 under section                     22(a)(3)-(a)(6)
                                                    22(a)(1)       ---------------------------------------------
                                            -----------------------
             Transition period                 Percentage of the      Percentage of the      Percentage of the
                                                deductions from        deductions from      deductions from tier
                                              common equity tier 1   common equity tier 1        1 capital
                                                    capital                capital
----------------------------------------------------------------------------------------------------------------
Calendar year 2013.........................                   100                      0                    100
Calendar year 2014.........................                   100                     20                     80
Calendar year 2015.........................                   100                     40                     60
Calendar year 2016.........................                   100                     60                     40
Calendar year 2017.........................                   100                     80                     20
Calendar year 2018 and thereafter..........                   100                    100                      0
----------------------------------------------------------------------------------------------------------------

    In accordance with table 12, starting in 2013, banking 
organizations would be required to deduct the full amount of goodwill 
(net of any associated DTLs), including any goodwill embedded in the 
valuation of significant investments in the capital of unconsolidated 
financial institutions, from common equity tier 1 capital elements. 
This approach is stricter than that under Basel III, which transitions 
the goodwill deduction from common equity tier 1 capital in line with 
the rest of the deductible items. Under U.S. law, goodwill cannot be 
included in a banking organization's regulatory capital. Additionally, 
the agencies believe that fully deducting goodwill from common equity 
tier 1 capital elements starting on January 1, 2013 would result in a 
more meaningful common equity tier 1 capital ratio from a supervisory 
and market perspective.
    For example, from January 1, 2014 through December 31, 2014, a 
banking organization would deduct 100 percent of goodwill from common 
equity tier 1 capital elements. However, during that same period, only 
20 percent of the aggregate amount of DTAs that arise from operating 
loss and tax credit carryforwards, gain-on-sale associated with a 
securitization exposure, defined benefit pension fund assets, and 
expected credit loss that exceeds eligible credit reserves (for a 
banking organization subject to subpart E of the proposed rule), would 
be deducted from common equity tier 1 capital elements while 80 percent 
of such aggregate amount would be deducted from tier 1 capital 
elements. Starting on January 1, 2018, 100 percent of the items in 
section 22(a) of the proposed rule would be fully deducted from common 
equity tier 1 capital elements.
Deductions for Intangibles Other Than Goodwill and MSAs
    For intangibles other than goodwill and MSAs, including PCCRs 
(section 22(a)(2) of the proposal), the transition arrangement is 
outlined in table 13. During this transition period, any of these items 
that are not deducted would be subject to a risk weight of 100 percent.

 Table 13--Proposed Transition Deductions Under Section 22(a)(2) of the
                                Proposal
------------------------------------------------------------------------
                                           Transition deductions under
                                         section 22(a)(2)--Percentage of
           Transition period                the deductions from common
                                              equity tier 1 capital
------------------------------------------------------------------------
Calendar year 2013.....................                 0
Calendar year 2014.....................                 20

[[Page 52827]]

 
Calendar year 2015.....................                 40
Calendar year 2016.....................                 60
Calendar year 2017.....................                 80
Calendar year 2018 and thereafter......                100
------------------------------------------------------------------------

    For example, from January 1, 2014 through December 31, 2014, 20 
percent of the aggregate amount of the deductions that would be 
required under section 22(a)(2) of the proposed rule for intangibles 
other than goodwill and MSAs would be applied to common equity tier 1 
capital, while any such intangibles that are not deducted from capital 
during the transition period would be risk-weighted at 100 percent.
Regulatory Adjustments Under Section 22(b)(2) of the Proposed Rule
    From January 1, 2013 through December 31, 2017, banking 
organizations would apply the regulatory adjustments under section 
22(b)(2) of the proposed rule related to changes in the fair value of 
liabilities due to changes in the banking organization's own credit 
risk to common equity tier 1 or tier 1 capital in accordance with table 
14. During this period, any of the adjustments related to this item 
that are not applied to common equity tier 1 capital are applied to 
tier 1 capital instead.

                        Table 14--Proposed Transition Adjustments Under Section 22(b)(2)
----------------------------------------------------------------------------------------------------------------
                                                        Transition adjustments under section 22(b)(2)
                                           ---------------------------------------------------------------------
             Transition period                 Percentage of the adjustment
                                             applied to common equity tier 1      Percentage of the adjustment
                                                         capital                   applied to tier 1 capital
----------------------------------------------------------------------------------------------------------------
Calendar year 2013........................                                 0                                100
Calendar year 2014........................                                20                                 80
Calendar year 2015........................                                40                                 60
Calendar year 2016........................                                60                                 40
Calendar year 2017........................                                80                                 20
Calendar year 2018 and thereafter.........                               100                                  0
----------------------------------------------------------------------------------------------------------------

    For example, from January 1, 2013 through December 31, 2013, no 
regulatory adjustments to common equity tier 1 capital related to 
changes in the fair value of liabilities due to changes in the banking 
organization's own credit risk would be applied to common equity tier 1 
capital, but 100 percent of such adjustments would be applied to tier 1 
capital (that is, if the aggregate amount of these adjustments is 
positive, 100 percent would be deducted from tier 1 capital elements 
and if such aggregate amount is negative, 100 percent would be added 
back to tier 1 capital elements). Likewise, from January 1, 2014 
through December 31, 2014, 20 percent of the aggregate amount of the 
regulatory adjustments to common equity tier 1 capital related to this 
item would be applied to common equity tier 1 capital and 80 percent 
would be applied to tier 1 capital. Starting on January 1, 2018, 100 
percent of the regulatory capital adjustments related to changes in the 
fair value of liabilities due to changes in the banking organization's 
own credit risk would be applied to common equity tier 1 capital.
Phase Out of Current AOCI Regulatory Capital Adjustments
    Until December 31, 2017, the aggregate amount of net unrealized 
gains and losses on AFS debt securities, accumulated net gains and 
losses related to defined benefit pension obligations, unrealized gains 
on AFS equity securities, and accumulated net gains and losses on cash 
flow hedges related to items that are reported on the balance sheet at 
fair value included in AOCI (transition AOCI adjustment amount) is 
treated as set forth in table 15 below. Specifically, if a banking 
organization's transition AOCI adjustment amount is positive, it would 
need to adjust its common equity tier 1 capital by deducting the 
appropriate percentage of such aggregate amount in accordance with 
table 15 below and if such amount is negative, it would need to adjust 
its common equity tier 1 capital by adding back the appropriate 
percentage of such aggregate amount in accordance with table 15 below.

 Table 15--Proposed Percentage of the Transition AOCI Adjustment Amount
------------------------------------------------------------------------
                                            Percentage of the transition
                                            AOCI adjustment amount to be
             Transition period                applied to common equity
                                                   tier 1 capital
------------------------------------------------------------------------
Calendar year 2013........................               100
Calendar year 2014........................               80
Calendar year 2015........................               60
Calendar year 2016........................               40
Calendar year 2017........................               20
Calendar year 2018 and thereafter.........                0
------------------------------------------------------------------------


[[Page 52828]]

    For example, if during calendar year 2013 a banking organization's 
transition AOCI adjustment amount is positive 100 percent would be 
deducted from common equity tier 1 capital elements and if such 
aggregate amount is negative 100 percent would be added back to common 
equity tier 1 capital elements. Starting on January 1, 2018, there 
would be no adjustment for net unrealized gains and losses on AFS 
securities or for accumulated net gains and losses on cash flow hedges 
related to items that are reported on the balance sheet at fair value 
included in AOCI.
Phase Out of Unrealized Gains on AFS Equity Securities in Tier 2 
Capital
    A banking organization would gradually decrease the amount of 
unrealized gains on AFS equity securities it currently holds in tier 2 
capital during the transition period in accordance with table 16.

     Table 16--Proposed Percentage of Unrealized Gains on AFS Equity
            Securities That May Be Included in Tier 2 Capital
------------------------------------------------------------------------
                                              Percentage of unrealized
                                                 gains on AFS equity
             Transition period                 securities that may be
                                             included in tier 2 capital
------------------------------------------------------------------------
Calendar year 2013........................               45
Calendar year 2014........................               36
Calendar year 2015........................               27
Calendar year 2016........................               18
Calendar year 2017........................                9
Calendar year 2018 and thereafter.........                0
------------------------------------------------------------------------

    For example, during calendar year 2014, banking organizations would 
include up to 36 percent (80 percent of 45 percent) of unrealized gains 
on AFS equity securities in tier 2 capital; during calendar years 2015, 
2016, 2017, and 2018 (and thereafter) these percentages would go down 
to 27, 18, 9 and zero, respectively.
Deductions Under Sections 22(c) and 22(d) of the Proposed Rule
    From January 1, 2013 through December 31, 2017, a banking 
organization would calculate the appropriate deductions under sections 
22(c) and 22(d) of the proposed rule related to investments in capital 
instruments and to the items subject to the 10 and 15 percent common 
equity tier 1 capital deduction thresholds (that is, MSAs, DTAs arising 
from temporary differences that the banking organization could not 
realize through net operating loss carrybacks, and significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock) as set forth in table 17. Specifically, 
during such transition period, the banking organization would make the 
percentage of the aggregate common equity tier 1 capital deductions 
related to these items in accordance with the percentages outlined in 
table 17 and would apply a 100 percent risk-weight to the aggregate 
amount of such items that are not deducted under this section. 
Beginning on January 1, 2018, a banking organization would be required 
to apply a 250 percent risk-weight to the aggregate amount of the items 
subject to the 10 and 15 percent common equity tier 1 capital deduction 
thresholds that are not deducted from common equity tier 1 capital.

 Table 17--Proposed Transition Deductions Under Sections 22(c) and 22(d)
                             of the Proposal
------------------------------------------------------------------------
                                            Transition deductions under
                                             sections 22(c) and 22(d)--
            Transition period               Percentage of the deductions
                                             from common equity tier 1
                                                  capital elements
------------------------------------------------------------------------
Calendar year 2013.......................                0
Calendar year 2014.......................                20
Calendar year 2015.......................                40
Calendar year 2016.......................                60
Calendar year 2017.......................                80
Calendar year 2018 and thereafter........               100
------------------------------------------------------------------------

    However, banking organizations would not be subject to the 
methodology to calculate the 15 percent common equity deduction 
threshold for DTAs arising from temporary differences that the banking 
organization could not realize through net operating loss carrybacks, 
MSAs, and significant investments in the capital of unconsolidated 
financial institutions in the form of common stock described in section 
22(d) of the proposed rule from January 1, 2013 through December 31, 
2017. During this transition period, a banking organization would be 
required to deduct from its common equity tier 1 capital elements a 
specified percentage of the amount by which the aggregate sum of the 
items subject to the 10 and 15 percent common equity tier 1 capital 
deduction thresholds exceeds 15 percent of the sum of the banking 
organization's common equity tier 1 capital elements after making the 
deductions required under sections 22(a) through (c) of the proposed 
rule. These deductions include goodwill, intangibles other than 
goodwill and MSAs, DTAs that arise from operating loss and tax credit 
carryforwards cash flow hedges associated with items that are not fair 
valued, excess ECLs (for advanced approaches banking organizations), 
gains-on-sale on certain securitization exposures, defined benefit 
pension fund net assets for banks that are not insured by the FDIC, and 
reciprocal cross holdings, gains (or adding back losses) due to changes 
in own credit risk on fair valued financial liabilities, and after 
applying the

[[Page 52829]]

appropriate common equity tier 1 capital deductions related to non-
significant investments in the capital of unconsolidated financial 
institutions (the 15 percent common equity deduction threshold for 
transition purposes).
    Notwithstanding the transition provisions for the items under 
sections 22(c) and 22(d) of the proposed rule described above, if the 
amount of MSAs a banking organization deducts after the application of 
the appropriate thresholds is less than 10 percent of the fair value of 
its MSAs, the banking organization must deduct an additional amount of 
MSAs so that the total amount of MSAs deducted is at least 10 percent 
of the fair value of its MSAs.
    Beginning January 1, 2018, the aggregate amount of the items 
subject to the 10 and 15 percent common equity tier 1 capital deduction 
thresholds would not be permitted to exceed 15 percent of the banking 
organization's common equity tier 1 capital after all deductions. That 
is, as of January 1, 2018, the banking organization would be required 
to deduct, from common equity tier 1 capital elements the items subject 
to the 10 and 15 percent common equity tier 1 capital deduction 
thresholds that exceed 17.65 percent of common equity tier 1 capital 
elements less the regulatory adjustments and deductions mentioned in 
the previous paragraph and less the aggregate amount of the items 
subject to the 10 and 15 percent common equity tier 1 capital deduction 
thresholds in full.
    For example, during calendar year 2014, 20 percent of the aggregate 
amount of the deductions required for the items subject to the 10 and 
15 percent common equity tier 1 capital deduction thresholds would be 
applied to common equity tier 1 capital, while any such items not 
deducted would be risk weighted at 100 percent. Starting on January 1, 
2018, 100 percent of the appropriate aggregate deductions described in 
sections 22(c) and 22(d) of the proposed rule would be fully applied, 
while any of the items subject to the 10 and 15 percent common equity 
tier 1 capital deduction thresholds that are not deducted would be risk 
weighted at 250 percent.
Numerical Example for the Transition Provisions
    The following example illustrates the potential impact from 
regulatory capital adjustments and deductions on the common equity tier 
1 capital ratios of a banking organization. As outlined in table 18, 
the banking organization in this example has common equity tier 1 
capital elements (before any deductions) and total risk weighted assets 
of $200 and $1000 respectively, and also has goodwill, DTAs that arise 
from operating loss and tax credit carryforwards, non-significant 
investments in the capital of unconsolidated financial institutions, 
DTAs arising from temporary differences that could not be realized 
through net operating loss carrybacks, MSAs, and significant 
investments in the capital of unconsolidated financial institutions in 
the form of common stock of $40, $30, $10, $30, $20, and $10, 
respectively. For simplicity, this example only focuses on common 
equity tier 1 capital and assumes that the risk weight applied to all 
assets is 100 percent (the only exception being the 250 percent risk 
weight applied in 2018 to the ``items subject to an aggregate 15% 
threshold'').

  Table 18--Example--Impact of Regulatory Deductions During Transition
                                 Period
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Common equity tier 1 capital elements, net of treasury stock         200
 (CET1) elements (before deductions)...........................
Items subject to full deduction:
    Goodwill...................................................       40
    Deferred tax assets (DTAs) that arise from operating loss         30
     and tax credit carryforwards (DTAs from operating loss
     carryforwards)............................................
Items subject to threshold deductions:
    Non-significant investments in the capital of                     10
     unconsolidated financial institutions (non-significant
     investments)..............................................
Items subject to aggregate 15% threshold:
    DTAs arising from temporary differences that the banking          30
     organization could not realize through net operating loss
     carrybacks (temporary differences DTAs)...................
MSAs...........................................................       20
Significant investments in the capital of unconsolidated              10
 financial institutions in the form of common stock
 (significant investments).....................................
Risk-weighted assets (RWAs)....................................     1000
------------------------------------------------------------------------

    Table 19 below illustrates the process to calculate the deductions 
while showing the potential impact of the deductions on the common 
equity tier 1 capital ratio of the banking organization during the 
transition period.

                   Table 19--Example--Impact of Regulatory Deductions During Transition Period
----------------------------------------------------------------------------------------------------------------
                                              Base
         Transition calendar years            case      2013      2014      2015      2016      2017      2018
----------------------------------------------------------------------------------------------------------------
Percentage of deduction...................  ........  ........       20%       40%       60%       80%      100%
CET1 before deductions....................       200       200       200       200       200       200       200
Deduction of goodwill.....................        40        40        40        40        40        40        40
Deduction of DTAs from operating loss             30         0         6        12        18        24        30
 carryforwards............................
CET1 after non-threshold deductions.......       130       160       154       148       142       136       130
10% limit for non-significant investments.      13.0      16.0      15.4      14.8      14.2      13.6      13.0
Deduction of non-significant investments..         0         0         0         0         0         0         0
CET1 after non-threshold deductions and          130       160       154       148       142       136       130
 deduction of non-significant investments.
10% CET1 limit for items subject to 15%         13.0      16.0      15.4      14.8      14.2      13.6      13.0
 threshold................................
Deduction of significant investments due           0         0         0         0         0         0         0
 to 10% limit.............................
Deduction of temporary differences DTAs         17.0         0       3.4       6.8      10.2      13.6      17.0
 due to 10% limit.........................
Deduction of MSAs due to 10% limit........       7.0         0       1.4       2.8       4.2       5.6       7.0
CET1 after deductions related to 10% limit       106       160     149.2     138.4     127.6     116.8     106.0
Outstanding significant investments.......        10        10        10        10        10        10        10

[[Page 52830]]

 
Outstanding temporary differences DTAs....        13        30        27        23        20        16        13
Outstanding MSAs..........................        13        20        19        17        16        14        13
Sum of outstanding items subject to 15%           36        60        55        50        46        41        36
 threshold................................
15% CET1 limit (for items subject to 15%        19.5      24.0      23.1      22.2      21.3      20.4      19.5
 threshold) (pre-2018)....................
Deduction of outstanding items subject to       16.5       0.0       3.3       6.6       9.9      13.2  ........
 15% threshold due to 15% limit (pre-2018)
Additional MSA deduction as of the                 0         2         0         0         0         0         0
 statutory limit (i.e., 10% of FV of MSAs)
CET1 after all deductions (pre-2018)......      89.5     158.0     145.9     131.8     117.7     103.6  ........
Total New RWAs (pre-2018).................     889.5     928.0     921.9     913.8     905.7     897.6  ........
15% CET1 limit (for items subject to 15%    ........  ........  ........  ........  ........  ........        12
 threshold) (2018)........................
Deduction of outstanding items subject to   ........  ........  ........  ........  ........  ........        24
 15% threshold due to 15% limit (2018)....
----------------------------------------------------------------------------------------------------------------
CET1 after all deductions--starting 2018..  ........  ........  ........  ........  ........  ........      82.4
2018 RWAs.................................  ........  ........  ........  ........  ........  ........       901
----------------------------------------------------------------------------------------------------------------
CET1 ratio................................  ........     17.0%     15.8%     14.4%     13.0%     11.5%      9.1%
----------------------------------------------------------------------------------------------------------------

    To establish the starting point (or ``base case'') for the 
deductions, the banking organization calculates the fully phased-in 
deductions, except in the case of the 15 percent deduction threshold, 
which is calculated during the transition period as described above. 
Common equity tier 1 capital elements, after the deduction of items 
that are not subject to the threshold deductions are $160, $154, $148, 
$142, and $136, and $130 as of January 1, 2013, January 1, 2014, 
January 1, 2015, January 1, 2016, January 1, 2017, and January 1, 2018, 
respectively. In this particular example, these numbers are obtained 
after fully deducting goodwill, and after deducting the base case 
deduction for DTAs that arise from operating loss and tax credit 
carryforwards multiplied by the appropriate percentage under the 
transition arrangement for deductions outlined in table 12 of this 
section. That is, after deducting from common equity tier 1 capital 
elements 100 percent of goodwill and 20 percent of the base case 
deduction for DTAs that arise from operating loss and tax credit 
carryforwards during 2014, 40 percent during 2015, 60 percent during 
2016, 80 percent during 2017, and 100 percent during 2018).\89\
---------------------------------------------------------------------------

    \89\ As outlined in table 12, the amount of DTAs that arise from 
operating loss and tax credit carryforwards that are not deducted 
from common equity tier 1 capital during the transition period are 
deducted from tier 1 capital instead.
---------------------------------------------------------------------------

    After applying the required deduction as a result of the 10 and 15 
percent common equity tier 1 deduction thresholds outlined in table 17 
of this section and after making the additional $2 deduction of MSAs 
during 2013 as a result of the MSA minimum statutory deduction (that 
is, 10 percent of the fair value of the MSAs), the common equity tier 1 
capital elements would be $158, $146, $132, $118, $104, and $82 as of 
January 1, 2013, January 1, 2014, January 1, 2015, January 1, 2016, 
January 1, 2017, and January 1, 2018, respectively. After adjusting the 
total risk weighted assets measure as a result of the numerator 
deductions, the common equity tier 1 capital ratios would be 17.0 
percent, 15.8 percent, 14.4 percent, 13.0 percent, 11.5 percent and 9.1 
percent as of January 1, 2013, January 1, 2014, January 1, 2015, 
January 1, 2016, January 1, 2017, and January 1, 2018, respectively. 
Any DTAs arising from temporary differences that could not be realized 
through net operating loss carrybacks, MSAs, or significant investments 
in the capital of unconsolidated financial institutions in the form of 
common stock that are not deducted from common equity tier 1 capital 
elements as a result of the transitional arrangements would be risk 
weighted at 100 percent during the transition period and would be risk 
weighted at 250 percent starting on 2018.

D. Non-Qualifying Capital Instruments

    Under the NPR, non-qualifying capital instruments, including 
instruments that are part of minority interest, would be phased out 
from regulatory capital depending on the size of the issuing banking 
organization and the type of capital instrument involved. Under the 
proposed rule, and in line with the requirements under the Dodd-Frank 
Act, instruments like cumulative perpetual preferred stock and trust 
preferred securities, which bank holding companies have historically 
included (subject to limits) in tier 1 capital under the ``restricted 
core capital elements'' bucket generally would not comply with either 
the eligibility criteria for additional tier 1 capital instruments 
outlined in section 20 of the proposed rule or the general risk-based 
capital rules for depository institutions and therefore would be phased 
out from tier 1 capital as outlined in more detail below. However, 
these instruments would generally be included without limits in tier 2 
capital if they meet the eligibility criteria for tier 2 capital 
instruments outlined in section 20 of the proposed rule.
Phase-Out Schedule for Non-Qualifying Capital Instruments of Depository 
Institution Holding Companies of $15 Billion or More in Total 
Consolidated Assets
    Under section 171 of the Dodd-Frank Act, depository institution 
holding companies with total consolidated assets greater than or equal 
to $15 billion as of December 31, 2009 (depository institution holding 
companies of $15 billion or more) would be required to phase out their 
non-qualifying capital instruments as set forth in table 20 below. In 
the case of depository institution holding companies of $15 billion or 
more, non-qualifying capital instruments are debt or equity instruments 
issued before May 19, 2010, that do not meet the criteria in section 20 
of the proposed rule and were included in tier 1 or tier 2 capital as 
of May 19, 2010. Table 20 would apply separately to additional tier 1 
and tier 2 non-qualifying capital instruments but the amount of non-
qualifying capital instruments that would be excluded from additional 
tier 1 capital under this section would be included in tier 2

[[Page 52831]]

capital without limitation if they meet the eligibility criteria for 
tier 2 capital instruments under section 20 of the proposed rule. If a 
depository institution holding company of $15 billion or more acquires 
a depository institution holding company with total consolidated assets 
of less than $15 billion as of December 31, 2009 (depository 
institution holding company under $15 billion) or a depository 
institution holding company that was a mutual holding company as of May 
19, 2010 (2010 MHC), the non-qualifying capital instruments of the 
resulting organization would be subject to the phase-out schedule 
outlined in table 20. Likewise, if a depository institution holding 
company under $15 billion makes an acquisition and the resulting 
organization has total consolidated assets of $15 billion or more, its 
non-qualifying capital instruments would also be subject to the phase-
out schedule outlined in table 20.

   Table 20--Proposed Percentage of Non-Qualifying Capital Instruments
             Included in Additional Tier 1 or Tier 2 Capital
------------------------------------------------------------------------
                                            Percentage of non-qualifying
                                            capital instruments included
                                            in additional tier 1 or tier
     Transition period (calendar year)        2 capital for depository
                                                 institution holding
                                             companies of $15 billion or
                                                        more
------------------------------------------------------------------------
Calendar year 2013........................               75
Calendar year 2014........................               50
Calendar year 2015........................               25
Calendar year 2016 and thereafter.........                0
------------------------------------------------------------------------

    Accordingly, under the proposed rule a depository institution 
holding company of $15 billion or more would be allowed to include only 
75 percent of non-qualifying capital instruments in regulatory capital 
as of January 1, 2013, 50 percent as of January 1, 2014, 25 percent as 
of January 1, 2015, and zero percent as of January 1, 2016 and 
thereafter.
Phase-Out Schedule for Non-Qualifying Capital Instruments of Depository 
Institution Holding Companies Under $15 Billion, 2010 MHCs, and 
Depository Institutions
    Under the proposed rule, non-qualifying capital instruments of 
depository institutions and of depository institution holding companies 
under $15 billion and 2010 MHCs (issued before September 12, 2010), 
that were outstanding as of January 1, 2013 would be included in 
capital up to the percentage of the outstanding principal amount of 
such non-qualifying capital instruments as of December 31, 2013 
indicated in table 21. Table 21 applies separately to additional tier 1 
and tier 2 non-qualifying capital instruments but the amount of non-
qualifying capital instruments that would be excluded from additional 
tier 1 capital under this section would be included in the tier 2 
capital, provided the instruments meet the eligibility criteria for 
tier 2 capital instruments under section 20 of the proposed rule.

   Table 21--Proposed Percentage of Non-Qualifying Capital Instruments
             Included in Additional Tier 1 or Tier 2 Capital
------------------------------------------------------------------------
                                            Percentage of non-qualifying
                                            capital instruments included
                                            in additional tier 1 or tier
                                              2 capital for depository
     Transition period (calendar year)           institution holding
                                            companies under $15 billion,
                                            depository institutions, and
                                                      2010 MHCs
------------------------------------------------------------------------
Calendar year 2013........................               90
Calendar year 2014........................               80
Calendar year 2015........................               70
Calendar year 2016........................               60
Calendar year 2017........................               50
Calendar year 2018........................               40
Calendar year 2019........................               30
Calendar year 2020........................               20
Calendar year 2021........................               10
Calendar year 2022 and thereafter.........                0
------------------------------------------------------------------------

    For example, a banking organization that issued a tier 1 non-
qualifying capital instrument in August 2010 would be able to count 90 
percent of the notional outstanding amount of the instrument as of 
January 1, 2013 during calendar year 2013 and 80 percent during 
calendar year 2014. As of January 1, 2022, no tier 1 non-qualifying 
capital instruments would be recognized in tier 1 capital.
Phase-Out Schedule for Surplus and Non-Qualifying Minority Interest
    From January 1, 2013 through December 31, 2018, a banking 
organization would be allowed to include in regulatory capital a 
portion of the common equity tier 1, tier 1, or total capital minority 
interest that would be disqualified from regulatory capital as a result 
of the requirements and limitations outlined in section 21 (surplus 
minority interest). If a banking organization has surplus minority 
interest outstanding as of January 1, 2013, such surplus minority 
interest would be subject to the phase-out schedule outlined in table 
22. For example, if a banking organization has $10 of surplus common 
equity tier 1 minority interest as of January 1, 2013, it would be 
allowed to include all such

[[Page 52832]]

surplus in its common equity tier 1 capital during calendar year 2013, 
$8 during calendar year 2014, $6 during calendar year 2015, $4 during 
calendar year 2016, $2 during calendar year 2017 and $0 starting in 
January 1, 2018. Likewise, from January 1, 2013 through December 31, 
2018, a banking organization would be able to include in tier 1 or 
total capital a portion of the instruments issued by a consolidated 
subsidiary that qualified as tier 1 or total capital of the banking 
organization as of December 31, 2012 but that would not qualify as tier 
1 or total minority interest as of January 1, 2013 (non-qualifying 
minority interest) in accordance with Table 22. For example, if a 
banking organization has $10 of non-qualifying minority interest that 
previously qualified as tier 1 capital, it would be allowed to include 
$10 in its tier 1 capital during calendar year 2013, $8 during calendar 
year 2014, $6 during calendar year 2015, $4 during calendar year 2016, 
$2 during calendar year 2017 and $0 starting in January 1, 2018.

Table 22--Percentage of the Amount of Surplus or Non-Qualifying Minority
   Interest Includable in Regulatory Capital During Transition Period
------------------------------------------------------------------------
                                             Percentage of the amount of
                                              surplus or non-qualifying
                                             minority interest that can
             Transition period                be included in regulatory
                                                 capital during the
                                                  transition period
------------------------------------------------------------------------
Calendar year 2013........................               100
Calendar year 2014........................               80
Calendar year 2015........................               60
Calendar year 2015........................               60
Calendar year 2016........................               40
Calendar year 2017........................               20
Calendar year 2018 and thereafter.........                0
------------------------------------------------------------------------

Transition Provisions for Standardized Approach NPR
    In addition, under the Standardized Approach NPR, beginning on 
January 1, 2015, a banking organization would be required to calculate 
risk-weighted assets using the proposed new approaches described in 
that NPR. The Standardized Approach NPR proposes that until then, the 
banking organization may calculate risk-weighted assets using the 
current methodologies unless it decides to early adopt the proposed 
changes. Notwithstanding the transition provisions in the Standardized 
Approach NPR, the banking organization would be subject to the 
transition provisions described in this Basel III NPR.
    Question 36: The agencies solicit comments on the transition 
arrangements outlined previously. In particular, what specific 
regulatory reporting burden or complexities would result from the 
application of the transition arrangements described in this section of 
the preamble, and what specific alternatives exist to deal with such 
burden or complexity while still adhering to the general transitional 
provisions required under the Dodd-Frank Act?
    Question 37: What are the pros and cons of a potentially stricter 
(but less complex) alternative transitions approach for the regulatory 
adjustments and deductions outlined in this section C under which 
banking organizations would be required to (1) apply all the regulatory 
adjustments and deductions currently applicable to tier 1 capital under 
the general risk-based capital rules to common equity tier 1 capital 
from January 1, 2013 through December 31, 2015; and (2) fully apply all 
the regulatory adjustments and deductions proposed in section 22 of the 
proposed rule starting on January 1, 2016? Please provide data to 
support your views.

E. Leverage Ratio

    The agencies are proposing to apply the supplementary leverage 
ratio beginning in 2018. However, beginning on January 1, 2015, 
advanced approaches banking organizations would be required to 
calculate and report the supplementary leverage ratio using the 
proposed definition of tier 1 capital and total exposure measure.
    Question 38: The agencies solicit comment on the proposed 
transition arrangements for the supplementary leverage ratio. In 
particular, what specific challenges do banking organizations 
anticipate with regard to the proposed arrangements and what specific 
alternative arrangements would address these challenges?

VI. Additional OCC Technical Amendments

    In addition to the changes described above, the OCC is proposing to 
redesignate subpart C, Establishment of Minimum Capital Ratios for an 
Individual Bank, subpart D, Enforcement, and subpart E, Issuance of a 
Directive, as subparts H, I, and J, respectively. The OCC is also 
proposing to redesignate section 3.100, Capital and Surplus, as subpart 
K, Capital and Surplus. The OCC is carrying over redesignated subpart 
K, which includes definitions of the terms ``capital'' and ``surplus'' 
and related definitions that are used for determining statutory limits 
applicable to national banks that are based on capital and surplus. The 
agencies have systematically adopted a definition of capital and 
surplus that is based on tier 1 and tier 2 capital. The OCC believes 
that the definitions in redesignated subpart K may no longer be 
necessary and is considering whether to delete these definitions in the 
final rule. Finally, as part of the integration of the rules governing 
national banks and federal savings associations, the OCC proposes to 
make part 3 applicable to federal savings associations, make other non-
substantive, technical amendments, and rescind part 167, Capital.
    In the final rule, the OCC may need to make additional technical 
and conforming amendments to other OCC rules, such as Sec.  5.46, 
subordinated debt, which contains cross references to Part 3 that we 
propose to change pursuant to this rule. Cross references to appendices 
A, B, or C will also need to be amended because we propose to replace 
those appendices with subparts A through H.
    Question 39: The OCC requests comment on all aspects of these 
proposed changes, but is specifically interested in whether it is 
necessary to retain the definitions of capital and surplus and related 
terms in redesignated subpart K.

VII. Abbreviations

ABCP Asset-Backed Commercial Paper
ABS Asset Backed Security
AD.C. Acquisition, Development, or Construction
AFS Available For Sale

[[Page 52833]]

AOCI Accumulated Other Comprehensive Income
BCBS Basel Committee on Banking Supervision
BHC Bank Holding Company
BIS Bank for International Settlements
CAMELS Capital Adequacy, Asset Quality, Management, Earnings, 
Liquidity, and Sensitivity to Market Risk
CCF Credit Conversion Factor
CCP Central Counterparty
CD.C. Community Development Corporation
CDFI Community Development Financial Institution
CDO Collateralized Debt Obligation
CDS Credit Default Swap
CDSind Index Credit Default Swap
CEIO Credit-Enhancing Interest-Only Strip
CF Conversion Factor
CFR Code of Federal Regulations
CFTC Commodity Futures Trading Commission
CMBS Commercial Mortgage Backed Security
CPSS Committee on Payment and Settlement Systems
CRC Country Risk Classifications
CRAM Country Risk Assessment Model
CRM Credit Risk Mitigation
CUSIP Committee on Uniform Securities Identification Procedures
D.C.O Derivatives Clearing Organizations
DFA Dodd-Frank Act
DI Depository Institution
DPC Debts Previously Contracted
DTA Deferred Tax Asset
DTL Deferred Tax Liability
DVA Debit Valuation Adjustment
DvP Delivery-versus-Payment
E Measure of Effectiveness
EAD Exposure at Default
ECL Expected Credit Loss
EE Expected Exposure
E.O. Executive Order
EPE Expected Positive Exposure
FASB Financial Accounting Standards Board
FDIC Federal Deposit Insurance Corporation
FFIEC Federal Financial Institutions Examination Council
FHLMC Federal Home Loan Mortgage Corporation
FMU Financial Market Utility
FNMA Federal National Mortgage Association
FR Federal Register
GAAP Generally Accepted Accounting Principles
GDP Gross Domestic Product
GLBA Gramm-Leach-Bliley Act
GSE Government-Sponsored Entity
HAMP Home Affordable Mortgage Program
HELOC Home Equity Line of Credit
HOLA Home Owners' Loan Act
HVCRE High-Volatility Commercial Real Estate
IFRS International Reporting Standards
IMM Internal Models Methodology
I/O Interest-Only
IOSCO International Organization of Securities Commissions
LTV Loan-to-Value Ratio
M Effective Maturity
MDB Multilateral Development Banks
MSA Mortgage Servicing Assets
NGR Net-to-Gross Ratio
NPR Notice of Proposed Rulemaking
NRSRO Nationally Recognized Statistical Rating Organization
OCC Office of the Comptroller of the Currency
OECD Organization for Economic Co-operation and Development
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OTC Over-the-Counter
PCA Prompt Corrective Action
PCCR Purchased Credit Card Receivables
PFE Potential Future Exposure
PMI Private Mortgage Insurance
PSE Public Sector Entities
PvP Payment-versus-Payment
QCCP Qualifying Central Counterparty
RBA Ratings-Based Approach
REIT Real Estate Investment Trust
RFA Regulatory Flexibility Act
RMBS Residential Mortgage Backed Security
RTCRRI Act Resolution Trust Corporation Refinancing, Restructuring, 
and Improvement Act of 1991
RVC Ratio of Value Change
RWA Risk-Weighted Asset
SEC Securities and Exchange Commission
SFA Supervisory Formula Approach
SFT Securities Financing Transactions
SBLF Small Business Lending Facility
SLHC Savings and Loan Holding Company
SPE Special Purpose Entity
SPV Special Purpose Vehicle
SR Supervision and Regulation Letter
SRWA Simple Risk-Weight Approach
SSFA Simplified Supervisory Formula Approach
UMRA Unfunded Mandates Reform Act of 1995
U.S. United States
U.S.C. United States Code
VaR Value-at-Risk

VIII. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA) requires 
an agency to provide an initial regulatory flexibility analysis with a 
proposed rule or to certify that the rule will not have a significant 
economic impact on a substantial number of small entities (defined for 
purposes of the RFA to include banking entities with assets less than 
or equal to $175 million) and publish its certification and a short, 
explanatory statement in the Federal Register along with the proposed 
rule.
    The agencies are separately publishing initial regulatory 
flexibility analyses for the proposals as set forth in this NPR.

Board

A. Statement of the Objectives of the Proposal; Legal Basis
    As discussed previously in the Supplementary Information, the Board 
is proposing in this NPR to revise its capital requirements to promote 
safe and sound banking practices, implement Basel III, and codify its 
capital requirements. The proposals also satisfy certain requirements 
under the Dodd-Frank Act by imposing new or revised minimum capital 
requirements on certain depository institution holding companies.\90\ 
Under section 38(c)(1) of the Federal Deposit Insurance Act, the 
agencies may prescribe capital standards for depository institutions 
that they regulate.\91\ In addition, among other authorities, the Board 
may establish capital requirements for state member banks under the 
Federal Reserve Act,\92\ for state member banks and bank holding 
companies under the International Lending Supervision Act and Bank 
Holding Company Act,\93\ and for savings and loan holding companies 
under the Home Owners Loan Act.\94\
---------------------------------------------------------------------------

    \90\ See 12 U.S.C. 5371.
    \91\ See 12 U.S.C. 1831o(c)(1).
    \92\ See 12 CFR 208.43.
    \93\ See 12 U.S.C. 3907; 12 U.S.C. 1844.
    \94\ See 12 U.S.C. 1467a(g)(1).
---------------------------------------------------------------------------

B. Small Entities Potentially Affected by the Proposal
    Under regulations issued by the Small Business Administration,\95\ 
a small entity includes a depository institution or bank holding 
company with total assets of $175 million or less (a small banking 
organization). As of March 31, 2012 there were 373 small state member 
banks. As of December 31, 2011, there were approximately 128 small 
savings and loan holding companies and 2,385 small bank holding 
companies.\96\
---------------------------------------------------------------------------

    \95\ See 13 CFR 121.201.
    \96\ The December 31, 2011 data are the most recent available 
data on small savings and loan holding companies and small bank 
holding companies.
---------------------------------------------------------------------------

    The proposal would not apply to small bank holding companies that 
are not engaged in significant nonbanking activities, do not conduct 
significant off-balance sheet activities, and do not have a material 
amount of debt or equity securities outstanding that are registered 
with the SEC. These small bank holding companies remain subject to the 
Board's Small Bank Holding Company Policy Statement (Policy 
Statement).\97\
---------------------------------------------------------------------------

    \97\ See 12 CFR part 225, appendix C. Section 171 of the Dodd-
Frank provides an exemption from its requirements for bank holding 
companies subject to the Policy Statement (as in effect on May 19, 
2010). Section 171 does not provide a similar exemption for small 
savings and loan holding companies and they are therefore subject to 
the proposals. 12 U.S.C. 5371(b)(5)(C).
---------------------------------------------------------------------------

    Small state member banks and small savings and loan holding 
companies (covered small banking organizations) would be subject to the 
proposals in this NPR.

[[Page 52834]]

C. Impact on Covered Small Banking Organizations
    The proposals may impact covered small banking organizations in 
several ways. The proposals would affect covered small banking 
organizations' regulatory capital requirements. They would change the 
qualifying criteria for regulatory capital, including required 
deductions and adjustments, and modify the risk weight treatment for 
some exposures. They also would require covered small banking 
organizations to meet new minimum common equity tier 1 to risk-weighted 
assets ratio of 4.5 percent and an increased minimum tier 1 capital to 
risk-weighted assets risk-based capital ratio of 6 percent. Under the 
proposals, all banking organizations would remain subject to a 4 
percent minimum tier 1 leverage ratio.\98\
---------------------------------------------------------------------------

    \98\ Banking organizations subject to the advanced approaches 
rules also would be required in 2018 to achieve a minimum tier 1 
capital to total leverage exposure ratio (the supplementary leverage 
ratio) of 3 percent. Advanced approaches banking organizations 
should refer to section 10 of subpart B of the proposed rule and 
section II.B of the preamble for a more detailed discussion of the 
applicable minimum capital ratios.
---------------------------------------------------------------------------

    In addition, as described above, the proposals would impose 
limitations on capital distributions and discretionary bonus payments 
for covered small banking organizations that do not hold a buffer of 
common equity tier 1 capital above the minimum ratios. As a result of 
these new requirements, some covered small banking organizations may 
have to alter their capital structure (including by raising new capital 
or increasing retention of earnings) in order to achieve compliance.
    Most small state member banks already hold capital in excess of the 
proposed minimum risk-based regulatory ratios. Therefore, the proposed 
requirements are not expected to significantly impact the capital 
structure of most covered small state member banks. Comparing the 
capital requirements proposed in this NPR and the Standardized Approach 
NPR on a fully phased-in basis to minimum requirements of the current 
rules, the capital ratios of approximately 1-2 percent of small state 
member banks would fall below at least one of the proposed minimum 
risk-based capital requirements. Thus, the Board believes that the 
proposals in this NPR and the Standardized NPR would affect an 
insubstantial number of small state member banks.
    Because the Board has not fully implemented reporting requirements 
for savings and loan holding companies, it is unable to determine the 
impact of the proposed requirements on small savings and loan holding 
companies. The Board seeks comment on the potential impact of the 
proposed requirements on small savings and loan holding companies.
    Covered small banking organizations that would have to raise 
additional capital to comply with the requirements of the proposals may 
incur certain costs, including costs associated with issuance of 
regulatory capital instruments. The Board has sought to minimize the 
burden of raising additional capital by providing for transitional 
arrangements that phase-in the new capital requirements over several 
years, allowing banking organizations time to accumulate additional 
capital through retained earnings as well as raising capital in the 
market. While the proposals would establish a narrower definition of 
capital, a minimum common equity tier 1 capital ratio and a minimum 
tier 1 capital ratio that is higher than under the general risk-based 
capital rules, the majority of capital instruments currently held by 
small covered banking organizations under existing capital rules, such 
as common stock and noncumulative perpetual preferred stock, would 
remain eligible as regulatory capital instruments under the proposed 
requirements.
    As discussed above, the proposals would modify criteria for 
regulatory capital, deductions and adjustments to capital, and risk 
weights for exposures, as well as calculation of the leverage ratio. 
Accordingly, covered small banking organizations would be required to 
change their internal reporting processes to comply with these changes. 
These changes may require some additional personnel training and 
expenses related to new systems (or modification of existing systems) 
for calculating regulatory capital ratios.
    For small savings and loan holding companies, the compliance 
burdens described above may be greater than for those of other covered 
small banking organizations. Small savings and loan holding companies 
previously were not subject to regulatory capital requirements and 
reporting requirements tied regulatory capital requirements. Small 
savings and loan holding companies may therefore need to invest 
additional resources in establishing internal systems (including 
purchasing software or hiring personnel) or raising capital to come 
into compliance with the proposed requirements.
D. Transitional Arrangements To Ease Compliance Burden
    For those covered small banking organizations that would not 
immediately meet the proposed minimum requirements, this NPR provides 
transitional arrangements for banking organizations to make adjustments 
and to come into compliance. Small covered banking organizations would 
be required to meet the proposed minimum capital ratio requirements 
beginning on January 1, 2013 thorough to December 31, 2014. On January 
1, 2015, small covered banking organizations would be required to 
comply with the proposed minimum capital ratio requirements.
E. Identification of Duplicative, Overlapping, or Conflicting Federal 
Rules
    The Board is unaware of any duplicative, overlapping, or 
conflicting federal rules. As noted above, the Board anticipates 
issuing a separate proposal to implement reporting requirements that 
are tied to (but do not overlap or duplicate) the proposed 
requirements. The Board seeks comments and information regarding any 
such rules that are duplicative, overlapping, or otherwise in conflict 
with the proposed requirements.
F. Discussion of Significant Alternatives
    The Board has sought to incorporate flexibility and provide 
alternative treatments in this NPR and the Standardized NPR to lessen 
burden and complexity for smaller banking organizations wherever 
possible, consistent with safety and soundness and applicable law, 
including the Dodd-Frank Act. These alternatives and flexibility 
features include the following:
     Covered small banking organizations would not be subject 
to the proposed enhanced disclosure requirements.
     Covered small banking organizations would not be subject 
to possible increases in the capital conservation buffer through the 
countercyclical buffer.
     Covered small banking organizations would not be subject 
to the new supplementary leverage ratio.
     Covered small institutions that have issued capital 
instruments to the U.S. Treasury through the Small Business Lending 
Fund (a program for banking organizations with less than $10 billion in 
consolidated assets) or under the Emergency Economic Stabilization Act 
of 2008 prior to October 4, 2010, would be able to continue to include 
those

[[Page 52835]]

instruments in tier 1 or tier 2 capital (as applicable) even if not all 
criteria for inclusion under the proposed requirements are met.
     Covered small banking organizations that issued capital 
instruments that could no longer be included in tier 1 capital or tier 
2 capital under the proposed requirements would have a longer 
transition period for removing the instruments from tier 1 or tier 2 
capital (as applicable).
    The Board welcomes comment on any significant alternatives to the 
proposed requirements applicable to covered small banking organizations 
that would minimize their impact on those entities, as well as on all 
other aspects of its analysis. A final regulatory flexibility analysis 
will be conducted after consideration of comments received during the 
public comment period.

OCC

    In accordance with section 3(a) of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) (RFA), the OCC is publishing this summary of its 
Initial Regulatory Flexibility Analysis (IRFA) for this NPR. The RFA 
requires an agency to publish in the Federal Register its IRFA or a 
summary of its IRFA at the time of the publication of its general 
notice of proposed rulemaking \99\ or to certify that the proposed rule 
will not have a significant economic impact on a substantial number of 
small entities.\100\ For its IRFA, the OCC analyzed the potential 
economic impact of this NPR on the small entities that it regulates.
---------------------------------------------------------------------------

    \99\ 5 U.S.C. 603(a).
    \100\ 5 U.S.C. 605(b).
---------------------------------------------------------------------------

    The OCC welcomes comment on all aspects of the summary of its IRFA. 
A final regulatory flexibility analysis will be conducted after 
consideration of comments received during the public comment period.
A. Reasons Why the Proposed Rule Is Being Considered by the Agencies; 
Statement of the Objectives of the Proposed Rule; and Legal Basis
    As discussed in the Supplementary Information section above, the 
agencies are proposing to revise their capital requirements to promote 
safe and sound banking practices, implement Basel III, and harmonize 
capital requirements across charter type. Federal law authorizes each 
of the agencies to prescribe capital standards for the banking 
organizations that it regulates.\101\
---------------------------------------------------------------------------

    \101\ See, e.g., 12 U.S.C. 1467a(g)(1); 12 U.S.C. 1831o(c)(1); 
12 U.S.C. 1844; 12 U.S.C. 3907; and 12 U.S.C. 5371.
---------------------------------------------------------------------------

B. Small Entities Affected by the Proposal
    Under regulations issued by the Small Business Administration,\102\ 
a small entity includes a depository institution or bank holding 
company with total assets of $175 million or less (a small banking 
organization). As of March 31, 2012, there were approximately 599 small 
national banks and 284 small federally chartered savings associations.
---------------------------------------------------------------------------

    \102\ See 13 CFR 121.201.
---------------------------------------------------------------------------

C. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    This NPR includes changes to the general risk-based capital 
requirements that affect small banking organizations. Under this NPR, 
the changes to minimum capital requirements that would impact small 
national banks and federal savings associations include a more 
conservative definition of regulatory capital, a new common equity tier 
1 capital ratio, a higher minimum tier 1 capital ratio, new thresholds 
for prompt corrective action purposes, and a new capital conservation 
buffer. To estimate the impact of this NPR on national banks' and 
federal savings associations' capital needs, the OCC estimated the 
amount of capital the banks will need to raise to meet the new minimum 
standards relative to the amount of capital they currently hold. To 
estimate new capital ratios and requirements, the OCC used currently 
available data from banks' quarterly Consolidated Report of Condition 
and Income (Call Reports) to approximate capital under the proposed 
rule, which shows that most banks have raised their capital levels well 
above the existing minimum requirements. After comparing existing 
levels with the proposed new requirements, the OCC has determined that 
28 small institutions that it regulates would fall short of the 
proposed increased capital requirements. Together, those institutions 
would need to raise approximately $82 million in regulatory capital to 
meet the proposed minimum requirements. The OCC estimates that the cost 
of lost tax benefits associated with increasing total capital by $82 
million will be approximately $0.5 million per year. Averaged across 
the 28 affected institutions, the cost is approximately $18,000 per 
institution per year.
    To determine if a proposed rule has a significant economic impact 
on small entities, we compared the estimated annual cost with annual 
noninterest expense and annual salaries and employee benefits for each 
small entity. Based on this analysis, the OCC has concluded for 
purposes of this IRFA that the changes described in this NPR, when 
considered without regard to other changes to the capital requirements 
that the agencies simultaneously are proposing, would not result in a 
significant economic impact on a substantial number of small entities.
    However, as discussed in the Supplementary Information section 
above, the changes proposed in this NPR also should be considered 
together with changes proposed in the separate Standardized Approach 
NPR also published in today's Federal Register. The changes described 
in the Standardized NPR include:
    1. Changing the denominator of the risk-based capital ratios by 
revising the asset risk weights;
    2. Revising the treatment of counterparty credit risk;
    3. Replacing references to credit ratings with alternative measures 
of creditworthiness;
    4. Providing more comprehensive recognition of collateral and 
guarantees; and
    5. Providing a more favorable capital treatment for transactions 
cleared through qualifying central counterparties.
    These changes are designed to enhance the risk-sensitivity of the 
calculation of risk-weighted assets. Therefore, capital requirements 
may go down for some assets and up for others. For those assets with a 
higher risk weight under this NPR, however, that increase may be large 
in some instances, e.g., requiring the equivalent of a dollar-for-
dollar capital charge for some securitization exposures.
    The Basel Committee on Banking Supervision has been conducting 
periodic reviews of the potential quantitative impact of the Basel III 
framework.\103\ Although these reviews monitor the impact of 
implementing the Basel III framework rather than the proposed rule, the 
OCC is using estimates consistent with the Basel Committee's analysis, 
including a conservative estimate of a 20 percent increase in risk-
weighted assets, to gauge the impact of the Standardized Approach NPR 
on risk-weighted assets. Using this assumption, the OCC estimates that 
a total of 56 small national banks and federally chartered savings 
associations will need to raise additional capital to meet their 
regulatory minimums. The OCC

[[Page 52836]]

estimates that this total projected shortfall will be $143 million and 
that the cost of lost tax benefits associated with increasing total 
capital by $143 million will be approximately $0.8 million per year. 
Averaged across the 56 affected institutions, the cost is approximately 
$14,000 per institution per year.
---------------------------------------------------------------------------

    \103\ See, ``Update on Basel III Implementation Monitoring,'' 
Quantitative Impact Study Working Group, (January 28, 2012).
---------------------------------------------------------------------------

    To comply with the proposed rules in the Standardized Approach NPR, 
covered small banking organizations would be required to change their 
internal reporting processes. These changes would require some 
additional personnel training and expenses related to new systems (or 
modification of existing systems) for calculating regulatory capital 
ratios.
    Additionally, covered small banking organizations that hold certain 
exposures would be required to obtain additional information under the 
proposed rules in order to determine the applicable risk weights. 
Covered small banking organizations that hold exposures to sovereign 
entities other than the United States, foreign depository institutions, 
or foreign public sector entities would have to acquire Country Risk 
Classification ratings produced by the OECD to determine the applicable 
risk weights. Covered small banking organizations that hold residential 
mortgage exposures would need to have and maintain information about 
certain underwriting features of the mortgage as well as the LTV ratio 
in order to determine the applicable risk weight. Generally, covered 
small banking organizations that hold securitization exposures would 
need to obtain sufficient information about the underlying exposures to 
satisfy due diligence requirements and apply either the simplified 
supervisory formula or the gross-up approach described in section --.43 
of the Standardized Approach NPR to calculate the appropriate risk 
weight, or be required to assign a 1,250 percent risk weight to the 
exposure.
    Covered small banking organizations typically do not hold 
significant exposures to foreign entities or securitization exposures, 
and the agencies expect any additional burden related to calculating 
risk weights for these exposures, or holding capital against these 
exposures, would be relatively modest. The OCC estimates that, for 
small national banks and federal savings associations, the cost of 
implementing the alternative measures of creditworthiness will be 
approximately $36,125 per institution.
    Some covered small banking organizations may hold significant 
residential mortgage exposures. However, if the small banking 
organization originated the exposure, it should have sufficient 
information to determine the applicable risk weight under the proposed 
rule. If the small banking organization acquired the exposure from 
another institution, the information it would need to determine the 
applicable risk weight is consistent with information that it should 
normally collect for portfolio monitoring purposes and internal risk 
management.
    Covered small banking organizations would not be subject to the 
disclosure requirements in subpart D of the proposed rule. However, the 
agencies expect to modify regulatory reporting requirements that apply 
to covered small banking organizations to reflect the changes made to 
the agencies' capital requirements in the proposed rules. The agencies 
expect to propose these changes to the relevant reporting forms in a 
separate notice.
    To determine if a proposed rule has a significant economic impact 
on small entities the OCC compared the estimated annual cost with 
annual noninterest expense and annual salaries and employee benefits 
for each small entity. If the estimated annual cost was greater than or 
equal to 2.5 percent of total noninterest expense or 5 percent of 
annual salaries and employee benefits the OCC classified the impact as 
significant. As noted above, the OCC has concluded for purposes of this 
IRFA that the proposed rules in this NPR, when considered without 
regard to changes in the Standardized NPR, would not exceed these 
thresholds and therefore would not result in a significant economic 
impact on a substantial number of small entities. However, the OCC has 
concluded that the proposed rules in the Standardized Approach NPR 
would have a significant impact on a substantial number of small 
entities. The OCC estimates that together, the changes proposed in this 
NPR and the Standardized Approach NPR will exceed these thresholds for 
500 small national banks and 253 small federally chartered private 
savings institutions. Accordingly, when considered together, this NPR 
and the Standardized Approach NPR appear to have a significant economic 
impact on a substantial number of small entities.
D. Identification of Duplicative, Overlapping, or Conflicting Federal 
Rules
    The OCC is unaware of any duplicative, overlapping, or conflicting 
federal rules. As noted previously, the OCC anticipates issuing a 
separate proposal to implement reporting requirements that are tied to 
(but do not overlap or duplicate) the requirements of the proposed 
rules. The OCC seeks comments and information regarding any such 
federal rules that are duplicative, overlapping, or otherwise in 
conflict with the proposed rule.
E. Discussion of Significant Alternatives to the Proposed Rule
    The agencies have sought to incorporate flexibility into the 
proposed rule and lessen burden and complexity for smaller banking 
organizations wherever possible, consistent with safety and soundness 
and applicable law, including the Dodd-Frank Act. The agencies are 
requesting comment on potential options for simplifying the rule and 
reducing burden, including whether to permit certain small banking 
organizations to continue using portions of the current general risk-
based capital rules to calculate risk-weighted assets. Additionally, 
the agencies proposed the following alternatives and flexibility 
features:
     Covered small banking organizations are not subject to the 
enhanced disclosure requirements of the proposed rules.
     Covered small banking organizations would continue to 
apply a 100 percent risk weight to corporate exposures (as described in 
section --.32 of the Standardized Approach NPR).
     Covered small banking organizations may choose to apply 
the simpler gross-up method for securitization exposures rather than 
the Simplified Supervisory Formula Approach (SSFA) (as described in 
section --.43 of the Standardized Approach NPR).
     The proposed rule offers covered small banking 
organizations a choice between a simpler and more complex methods of 
risk weighting equity exposures to investment funds (as described in 
section --.53 of the Standardized Approach NPR).
    The agencies welcome comment on any significant alternatives to the 
proposed rules applicable to covered small banking organizations that 
would minimize their impact on those entities.

FDIC

Regulatory Flexibility Act
Summary of the FDIC's Initial Regulatory Flexibility Analysis (IRFA)
    In accordance with section 3(a) of the Regulatory Flexibility Act 
(5 U.S.C. 601 et seq.) (RFA), the FDIC is publishing this summary of 
the IRFA for this NPR. The RFA requires an agency to publish in the 
Federal Register an IRFA or a summary of its IRFA at the time of the

[[Page 52837]]

publication of its general notice of proposed rulemaking \104\ or to 
certify that the proposed rule will not have a significant economic 
impact on a substantial number of small entities.\105\ For purposes of 
this IRFA, the FDIC analyzed the potential economic impact of this NPR 
on the small entities that it regulates.
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    \104\ 5 U.S.C. 603(a).
    \105\ 5 U.S.C. 605(b).
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    The FDIC welcomes comment on all aspects of the summary of its 
IRFA. A final regulatory flexibility analysis will be conducted after 
consideration of comments received during the public comment period.
A. Reasons Why the Proposed Rule Is Being Considered by the Agencies; 
Statement of the Objectives of the Proposed Rule; and Legal Basis
    As discussed in the Supplementary Information section above, the 
agencies are proposing to revise their capital requirements to promote 
safe and sound banking practices, implement Basel III and certain 
aspects of the Dodd-Frank Act, and harmonize capital requirements 
across charter type. Federal law authorizes each of the agencies to 
prescribe capital standards for the banking organizations that it 
regulates.\106\
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    \106\ See, e.g., 12 U.S.C. 1467a(g)(1); 12 U.S.C. 1831o(c)(1); 
12 U.S.C. 1844; 12 U.S.C. 3907; and 12 U.S.C. 5371.
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B. Small Entities Affected by the Proposal
    Under regulations issued by the Small Business Administration,\107\ 
a small entity includes a depository institution or bank holding 
company with total assets of $175 million or less (a small banking 
organization). As of March 31, 2012, there were approximately 2,433 
small state nonmember banks, 115 small state savings banks, and 45 
small state savings associations (collectively, small banks and savings 
associations).
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    \107\ See 13 CFR 121.201.
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C. Projected Reporting, Recordkeeping, and Other Compliance 
Requirements
    This NPR includes changes to the general risk-based capital 
requirements that affect small banking organizations. Under this NPR, 
the changes to minimum capital requirements that would impact small 
banks and savings associations include a more conservative definition 
of regulatory capital, a new common equity tier 1 capital ratio, a 
higher minimum tier 1 capital ratio, new thresholds for prompt 
corrective action purposes, and a new capital conservation buffer. To 
estimate the impact of this NPR on the capital needs of small banks and 
savings associations, the FDIC estimated the amount of capital such 
institutions will need to raise to meet the new minimum standards 
relative to the amount of capital they currently hold. To estimate new 
capital ratios and requirements, the FDIC used currently available data 
from the quarterly Consolidated Report of Condition and Income (Call 
Reports) filed by small banks and savings associations to approximate