Regulatory Capital Rule: Emergency Capital Investment Program, 15076-15081 [2021-05443]
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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
rule does not have sufficient federalism
implications to warrant the preparation
of a federalism summary impact
statement.
G. Executive Order 12988 (Civil Justice
Reform)
Alejandro Mayorkas,
Secretary, U.S. Department of Homeland
Security.
[FR Doc. 2021–05872 Filed 3–19–21; 8:45 am]
This rule meets the applicable
standards set forth in section 3(a) and
3(b)(2) of Executive Order 12988.
BILLING CODE 9111–97–P
H. Paperwork Reduction Act
DEPARTMENT OF TREASURY
This rule does not propose new, or
revisions to existing, ‘‘collection[s] of
information’’ as that term is defined
under the Paperwork Reduction Act of
1995, Public Law 104–13, 44 U.S.C.
chapter 35, and its implementing
regulations, 5 CFR part 1320. As this is
an extension of a temporary final rule
and would only span 180 days, USCIS
does not anticipate a need to update the
Form I–589, Application for Asylum
and for Withholding of Removal,
despite the existing language on the
Instructions regarding interpreters,
because it will be primarily
rescheduling interviews that were
cancelled due to COVID–19. USCIS will
post updates on its I–589 website,
https://www.uscis.gov/i-589, and other
asylum and relevant web pages
regarding the new interview
requirements in this regulation, as well
as provide personal notice to applicants
via the interview notices issued to
applicants prior to their interview.
Office of the Comptroller of the
Currency
List of Subjects in 8 CFR Part 208
Administrative practice and
procedure, Aliens, Immigration,
Reporting and recordkeeping
requirements.
Accordingly, for the reasons set forth
in the preamble, the Secretary of
Homeland Security amends 8 CFR part
208 as follows:
PART 208—PROCEDURES FOR
ASYLUM AND WITHHOLDING OF
REMOVAL
1. The authority citation for part 208
continues to read as follows:
■
Authority: 8 U.S.C. 1101, 1103, 1158, 1226,
1252, 1282; Title VII of Pub. L. 110–229; 8
CFR part 2; Pub. L. 115–218.
2. Section 208.9(h) introductory text is
revised to read as follows:
■
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September 23, 2020 through September
20, 2021:
*
*
*
*
*
§ 208.9 Procedure for interview before an
asylum officer.
*
*
*
*
*
(h) Asylum applicant interpreters. For
asylum interviews conducted between
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12 CFR Parts 3 and 5
[Docket ID OCC–2021–0002]
RIN 1557–AF09
FEDERAL RESERVE SYSTEM
12 CFR Part 217
[Regulation Q; Docket No. R–1741 ]
RIN 7100–AG11
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 324
RIN 3064–AF73
Regulatory Capital Rule: Emergency
Capital Investment Program
Office of the Comptroller of the
Currency, Treasury (OCC); Board of
Governors of the Federal Reserve
System (Board); and Federal Deposit
Insurance Corporation (FDIC).
ACTION: Interim final rule; request for
public comment.
AGENCY:
In order to support and
facilitate the timely implementation and
acceptance of the Congressionally
authorized Emergency Capital
Investment Program (ECIP) for the
Department of the Treasury to make
capital investments in low- and
moderate-income community financial
institutions, the OCC, Board, and FDIC
(together, the agencies) are issuing an
interim final rule that provides that
preferred stock issued under ECIP
qualifies as additional tier 1 capital and
that subordinated debt issued under
ECIP qualifies as tier 2 capital under the
agencies’ capital rule.
DATES: This rule is effective on March
22, 2021. Comments must be received
on or before May 21, 2021.
ADDRESSES:
OCC: Commenters are encouraged to
submit comments through the Federal
eRulemaking Portal, if possible. Please
SUMMARY:
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use the title ‘‘Amendments to the
Capital Rule to Facilitate the Emergency
Capital Investment Program’’ to
facilitate the organization and
distribution of the comments. You may
submit comments by any of the
following methods:
Federal eRulemaking Portal: Go to
https://www.regulations.gov/. Enter
‘‘Docket ID OCC–2021–0002’’ in the
Search Box and click ‘‘Search.’’ Public
comments can be submitted via the
‘‘Comment’’ box below the displayed
document information or by clicking on
the document title and then clicking the
‘‘Comment’’ box on the top-left side of
the screen. For help with submitting
effective comments please click on
‘‘View Commenter’s Checklist.’’ For
assistance with the Regulations.gov site,
please call (877) 378–5457 (toll free) or
(703) 454–9859 Monday-Friday, 9am5pm ET or email regulations@
erulemakinghelpdesk.com.
Mail: Chief Counsel’s Office, Attn:
Comment Processing, Office of the
Comptroller of the Currency, 400 7th
Street SW, Suite 3E–218, Washington,
DC 20219.
Hand Delivery/Courier: 400 7th Street
SW, Suite 3E–218, Washington, DC
20219.
Instructions: You must include
‘‘OCC’’ as the agency name and ‘‘Docket
ID OCC–2021–0002’’ in your comment.
In general, the OCC will enter all
comments received into the docket and
publish the comments on the
Regulations.gov website without
change, including any business or
personal information provided 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
include 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
action by the following method:
Go to https://www.regulations.gov/.
Enter ‘‘Docket ID OCC–2021–0002’’ in
the Search box and click ‘‘Search.’’
Click on the ‘‘Documents’’ tab and then
the document’s title. After clicking the
document’s title, click the ‘‘Browse
Comments’’ tab. Comments can be
viewed and filtered by clicking on the
‘‘Sort By’’ drop-down on the right side
of the screen or the ‘‘Refine Results’’
options on the left side of the screen.
Supporting materials can be viewed by
clicking on the ‘‘Documents’’ tab and
filtered by clicking on the ‘‘Sort By’’
drop-down on the right side of the
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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
screen or the ‘‘Refine Documents
Results’’ options on the left side of the
screen. For assistance with the
Regulations.gov site, please call (877)
378–5457 (toll free) or (703) 454–9859
Monday–Friday, 9 a.m.–5 p.m. ET or
email regulations@
erulemakinghelpdesk.com.
The docket may be viewed after the
close of the comment period in the same
manner as during the comment period.
Board: You may submit comments,
identified by Docket No. R–1741 and
RIN No. 7100–AG11, by any of the
following methods:
Agency Website: https://
www.federalreserve.gov. Follow the
instructions for submitting comments at
https://www.federalreserve.gov/apps/
foia/proposedregs.aspx.
Email: regs.comments@
federalreserve.gov. Include docket
number and RIN in the subject line of
the message.
Fax: (202) 452–3819 or (202) 452–
3102.
Mail: Ann E. Misback, 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 website at https://
www.federalreserve.gov/generalinfo/
foia/ProposedRegs.cfm as submitted,
unless modified for technical reasons or
to remove sensitive personally
identifiable information at the
commenter’s request. Public comments
may also be viewed electronically or in
paper form in Room 3515, 1801 K Street
NW, Washington, DC 20006 between
9:00 a.m. and 5:00 p.m. on weekdays.
FDIC: You may submit comments
using any of the following methods:
Agency Website: https://
www.fdic.gov/regulations/laws/federal.
Follow the instructions for submitting
comments on the agency website.
Email: comments@fdic.gov. Include
RIN 3064–AF73 on the subject line of
the message.
Mail: James P. Sheesley, Assistant
Executive Secretary, Attention:
Comments RIN 3064–AF73, Federal
Deposit Insurance Corporation, 550 17th
Street NW, Washington, DC 20429.
Hand Delivery: Comments may be
hand delivered to the guard station at
the rear of the 550 17th Street NW
building (located on F Street) on
business days between 7 a.m. and 5 p.m.
Public Inspection: All comments
received, including any personal
information provided, will be posted
generally without change to https://
www.fdic.gov/regulations/laws/federal.
FOR FURTHER INFORMATION CONTACT:
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OCC: Margot Schwadron, Director, or
Andrew Tschirhart, Risk Expert, Capital
Policy, (202) 649–6370; or Carl
Kaminski, Special Counsel, or Daniel
Perez, Counsel, Chief Counsel’s Office,
(202) 649–5490, Office of the
Comptroller of the Currency, 400 7th
Street SW, Washington, DC 20219.
Board: Constance Horsley, Deputy
Associate Director, (202) 452–5239,
Naima Jefferson, Lead Financial
Institution Policy Analyst, (202) 912–
4613, Senait Kahsay, Senior Financial
Institution Policy Analyst II, (202) 245–
4209, Eusebius Luk, Senior Financial
Institution Policy Analyst I, (202) 452–
2874, Division of Supervision and
Regulation; Benjamin McDonough,
Associate General Counsel, (202) 452–
2036, Mark Buresh, Senior Counsel,
(202) 452–5270, Mary Watkins, Counsel,
(202) 452–3722, Legal Division, Board of
Governors of the Federal Reserve
System, 20th and C Streets NW,
Washington, DC 20551.
FDIC: Benedetto Bosco, Chief, Capital
Policy Section, bbosco@fdic.gov; Noah
Cuttler, Senior Policy Analyst, ncuttler@
fdic.gov; regulatorycapital@fdic.gov;
Capital Markets Branch, Division of Risk
Management Supervision, (202) 898–
6888; Gregory Feder, Counsel, gfeder@
fdic.gov; Suzanne Dawley, Counsel,
sudawley@fdic.gov; Francis Kuo,
Counsel, fkuo@fdic.gov; Amanda Ledig,
Attorney, aledig@fdic.gov; Supervision
and Legislation Branch, Legal Division,
Federal Deposit Insurance Corporation,
550 17th Street NW, Washington, DC
20429. For the hearing impaired only,
Telecommunication Device for the Deaf
(TDD), (800) 925–4618.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion
III. Request for Comment
IV. Administrative Law Matters
A. Administrative Procedure Act
B. Congressional Review Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Riegle Community Development and
Regulatory Improvement Act of 1994
F. Unfunded Mandates Reform Act of 1995
G. Use of Plain Language
I. Background
On December 27, 2020, the
Consolidated Appropriations Act,
2021,1 was signed into law and added
a new Section 104A to the Community
Development Banking and Financial
Institutions Act of 1994 (the Act).
Section 104A of the Act authorizes the
Secretary of the Treasury to establish
the Emergency Capital Investment
1 Public
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Law 116–260.
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Program (ECIP or Program) through
which the Department of the Treasury
(Treasury) can make capital investments
in certain low- and moderate-income
community financial institutions. The
Act states that the purpose of these
capital investments is to support the
efforts of low- and moderate-income
community financial institutions to,
among other things, provide loans,
grants, and forbearance for small
businesses, minority-owned businesses,
and consumers in low-income and
underserved communities, including
persistent poverty counties, which may
be disproportionately impacted by the
economic effects of the Coronavirus
2019 (COVID–19) event.2 Treasury’s
authority to make capital investments
under ECIP is time limited. The Program
will end six months after the date on
which the national emergency
concerning the COVID–19 outbreak
terminates.3
Under ECIP, a financial institution is
generally eligible to receive capital
investments from Treasury if it is a lowand moderate-income community
financial institution, which is defined
by the Act to include any financial
institution that is (1) a community
development financial institution or
minority depository institution,4 and (2)
an insured depository institution, bank
holding company, savings and loan
holding company, or federally insured
credit union (collectively, eligible
banking organizations).
Under ECIP, Treasury can acquire
senior preferred stock from eligible
banking organizations (Senior Preferred
Stock). Additionally, if the Secretary of
the Treasury determines that an eligible
banking organization cannot feasibly
issue preferred stock, such as a bank
organized as an S corporation 5 or
mutual banking organization, Treasury
can acquire subordinated debt
instruments (Subordinated Debt) from
such an eligible banking organization.6
Under the Act, Treasury is required to
seek to establish the terms of preferred
stock issued under ECIP to enable such
instruments to qualify as tier 1 capital
under the respective capital rule of the
OCC, Board, and FDIC (together, the
agencies).7
On March 4, 2021, Treasury
published the terms of the Senior
2 Id.
3 Id.
4 The terms ‘‘Community Development Financial
Institution’’ and ‘‘Minority Depository Institution’’
are defined in section 104A of the Act.
5 An S corporation is corporation that has elected
Subchapter S corporation status under the Internal
Revenue Code.
6 Section 104A(d)(5)(B) of the Act.
7 Section 104A(f) of the Act.
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Preferred Stock and Subordinated Debt.8
As described in the terms published by
Treasury, Senior Preferred Stock issued
under ECIP will be noncumulative,
perpetual preferred stock that is senior
to the issuer’s common stock and pari
passu with (or, in some cases, senior to)
the issuer’s most senior class of existing
preferred stock. Subordinated Debt
issued under ECIP will be unsecured
subordinated debt. The Subordinated
Debt will rank junior to all other debt
of the issuer except that it will rank
senior to mutual capital certificates or
similar instruments issued by a mutual
banking organization and to any equity
instruments issued by an S corporation.
Under the terms of Senior Preferred
Stock, participating eligible banking
organizations will not be required to pay
dividends until two years after issuance
of the Senior Preferred Stock, and then
will be subject to a noncumulative
dividend with a rate not to exceed 2
percent that may fluctuate based on
certain lending growth criteria applied
to the issuer. A participating eligible
banking organization is prohibited from
paying dividends under certain
circumstances, including if the
participating eligible banking
organization determines that the
payment would be detrimental to the
financial health of the institution. Under
the terms of the Subordinated Debt,
interest payments on the Subordinated
Debt would be subject to determinants
and constraints similar to those
described above, but the interest
payments would be cumulative and
deferrable.
The Act requires Treasury to establish
restrictions on executive compensation,
share buybacks, and dividend payments
for issuers of capital instruments issued
under ECIP, as well as restrictions on
conflicts of interest.9 The Act permits
Treasury to establish other terms and
conditions for participation in ECIP. On
March 4, 2021, Treasury issued an
interim final rule that established
restrictions on executive compensation,
capital distributions, and luxury
expenditures for ECIP.10
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II. Discussion
The Senior Preferred Stock and
Subordinated Debt will feature
8 The term sheets for the Senior Preferred Stock
and Subordinated Debt may be found on Treasury’s
website. For a complete description of the terms of
the instruments, see https://home.treasury.gov/
policy-issues/cares/emergency-capital-investmentprogram.
9 Section 104A(h) of the Act.
10 See Emergency Capital Investment Program—
Restrictions on Executive Compensation, Share
Buybacks, and Dividends, https://
home.treasury.gov/system/files/136/ECIP-interimfinal-rule.pdf.
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characteristics that are similar to those
of instruments that qualify under the
agencies’ capital rule as additional tier
1 capital and tier 2 capital, respectively.
As discussed above, the Act directs the
Secretary of the Treasury to seek to
establish the terms of the Senior
Preferred Stock to enable these
instruments to receive ‘‘Tier 1’’ capital
treatment. Further, the establishment of
ECIP and the capital investments being
made thereunder help support the
efforts of low- and moderate-income
community financial institutions to
provide financial intermediary services
in low-income and underserved
communities. To facilitate
implementation of ECIP, the agencies
are revising the capital rule to provide
that the Senior Preferred Stock will
qualify as additional tier 1 capital and
Subordinated Debt will qualify as tier 2
capital.11 12 These revisions are based on
the terms and conditions of the Senior
Preferred Stock and Subordinated Debt
provided in the Senior Preferred Stock
term sheet and the Subordinated Debt
term sheet published by the U.S.
Department of the Treasury on March 4,
2021. If the terms and conditions for the
Senior Preferred Stock or Subordinated
Debt are modified in the future such
that they differ materially from the
terms and conditions provided in the
term sheets, the agencies may reevaluate
whether such capital treatment remains
appropriate.
In addition, the OCC is adding
language to its licensing rule, which sets
forth certain requirements applicable to
subordinated debt issued by a national
bank. Paragraph (d)(2) of section 5.47
prohibits a national bank from including
in a subordinated debt note any
provision or covenant that unduly
restricts or otherwise acts to unduly
limit the authority of a national bank or
interferes with the OCC’s supervision of
the national bank. To facilitate the
ability of a national bank to issue
subordinated debt through ECIP, the
OCC is adding new paragraph (j) to
section 5.47. This new paragraph
clarifies that provisions and covenants
11 See 12 CFR 3.20 (OCC); 12 CFR 217.20 (Board);
12 CFR 324.20 (FDIC).
12 Certain small bank holding companies and
savings and loan holdings companies are subject to
the Board’s Small Bank Holding Company and
Savings and Loan Holding Company Policy
Statement (12 CFR part 225, app. C) rather than the
Board’s capital rule. The Policy Statement requires
subject companies to maintain specified debt-toequity ratios and specifies how certain types of debt
instruments and preferred stock instruments are to
be included for purposes of the debt-to-equity
ratios. For purposes of the Policy Statement, Senior
Preferred Stock issued under ECIP is redeemable
preferred stock, which is subject to certain
limitations under the Policy Statement, and
Subordinated Debt issued under ECIP is debt.
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added to a subordinated debt document
pursuant to requirements imposed by
the Treasury Department for purposes of
ECIP will not be considered, under
paragraph (d)(2) of section 5.47, to
unduly restrict or otherwise act to
unduly limit the authority of a national
bank or interfere with the OCC’s
supervision of the national bank.
III. Request for Comment
The agencies seek comment on all
aspects of this interim final rule. In
particular, the agencies seek comment
on the regulatory capital treatment of
the Senior Preferred Stock and
Subordinated Debt issued under ECIP
and on the following specific question:
Question: For banking organizations
subject to the Board’s Small Bank
Holding Company and Savings and
Loan Holding Company Policy
Statement, what are the advantages and
disadvantages of including Senior
Preferred Stock as equity and
Subordinated Debt as debt for purposes
of meeting the debt-to-equity ratio?
What are the advantages and
disadvantages of including Senior
Preferred Stock subject to the limits
described in the Policy Statement as
redeemable preferred stock? What are
the advantages and disadvantages of
excluding Subordinated Debt from debt
for purposes of the debt-to-equity ratio?
IV. Administrative Law Matters
A. Administrative Procedure Act
The agencies are issuing the interim
final rule without prior notice and the
opportunity for public comment and the
30-day delayed effective date ordinarily
prescribed by the Administrative
Procedure Act (APA).13 Pursuant to
section 553(b)(B) of the APA, general
notice and the opportunity for public
comment are not required with respect
to a rulemaking when an ‘‘agency for
good cause finds (and incorporates the
finding and a brief statement of reasons
therefore in the rules issued) that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.’’ 14
As discussed above, the purpose of
capital investments made under ECIP is
to support the efforts of low- and
moderate-income community financial
institutions and the communities they
serve, which may be disproportionately
impacted by the economic effects of the
COVID–19 event. The Act also requires
Treasury to seek to establish the terms
of senior preferred stock instruments
issued under the Program such that
these instruments would be considered
13 5
14 5
U.S.C. 553.
U.S.C. 553(b)(B).
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additional tier 1 capital under the
agencies’ capital rule.
The agencies believe that the public
interest is best served by implementing
the interim final rule immediately upon
publication in the Federal Register. The
interim final rule will facilitate
implementation of ECIP by providing
certainty that the Senior Preferred Stock
may be included in additional tier 1
capital and Subordinated Debt may be
included in tier 2 capital under the
capital rule. As noted above, Treasury’s
authority to make new capital
investments in ECIP will end six
months after the date on which the
national emergency concerning the
COVID–19 outbreak declared by the
President on March 13, 2020, under the
National Emergencies Act terminates.15
For these reasons, the agencies find that
there is good cause consistent with the
public interest to issue the rule without
advance notice and comment.16
The APA also requires a 30-day
delayed effective date, except for (1)
substantive rules that grant or recognize
an exemption or relieve a restriction; (2)
interpretative rules and statements of
policy; or (3) as otherwise provided by
the agency for good cause.17 Because the
interim final rule relieves a restriction,
the interim final rule is exempt from the
APA’s delayed effective date
requirement.18
In addition, the agencies find good
cause to publish the interim final rule
with an immediate effective date for the
same reasons set forth above under the
discussion of section 553(b)(B) of the
APA. While the agencies believe that
there is good cause to issue the interim
final rule without advance notice and
comment and with an immediate
effective date, as noted, the agencies are
interested in the views of the public on
all aspects of the interim final rule.
B. Congressional Review Act
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For purposes of Congressional Review
Act (CRA), the Office of Management
and Budget (OMB) makes a
determination as to whether a final rule
constitutes a ‘‘major’’ rule.19 If a rule is
deemed a ‘‘major rule’’ by the OMB, the
CRA generally provides that the rule
may not take effect until at least 60 days
following its publication.20
The CRA defines a ‘‘major rule’’ as
any rule that the Administrator of the
Office of Information and Regulatory
Affairs of the OMB finds has resulted in
15 Public
Law 116–260.
5 U.S.C. 553(b)(B).
17 5 U.S.C. 553(d).
18 5 U.S.C. 553(d)(1).
19 5 U.S.C. 801 et seq.
20 5 U.S.C. 801(a)(3).
16
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or is likely to result in (A) an annual
effect on the economy of $100,000,000
or more; (B) a major increase in costs or
prices for consumers, individual
industries, Federal, State, or local
government agencies or geographic
regions; or (C) significant adverse effects
on competition, employment,
investment, productivity, innovation, or
on the ability of United States-based
enterprises to compete with foreignbased enterprises in domestic and
export markets.
For the same reasons set forth above,
the agencies are adopting the interim
final rule without the delayed effective
date generally prescribed under the
CRA. The delayed effective date
required by the CRA does not apply to
any rule for which an agency for good
cause finds (and incorporates the
finding and a brief statement of reasons
therefor in the rule issued) that notice
and public procedure thereon are
impracticable, unnecessary, or contrary
to the public interest.21
As required by the CRA, the agencies
will submit the interim final rule and
other appropriate reports to Congress
and the Government Accountability
Office for review.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995
(PRA) states that no agency may
conduct or sponsor, nor is the
respondent required to respond to, an
information collection unless it displays
a currently valid OMB control
number.22 The agencies have reviewed
this interim final rule and have
determined that this interim final rule
does not introduce any new information
collections or revise any existing
information collections pursuant to the
PRA for the agencies. In addition, the
Board has reviewed this interim final
rule pursuant to authority delegated by
OMB. Therefore, no submissions will be
made by the agencies to OMB for
review.
D. Regulatory Flexibility Act
The Regulatory Flexibility Act
(RFA) 23 requires an agency to consider
whether the rules it proposes will have
a significant economic impact on a
substantial number of small entities.24
The RFA applies only to rules for which
an agency publishes a general notice of
21 5
U.S.C. 808.
U.S.C. 3501–3521.
23 5 U.S.C. 601 et seq.
24 Under regulations issued by the Small Business
Administration, a small entity includes a depository
institution, bank holding company, or savings and
loan holding company with total assets of $600
million or less and trust companies with total assets
of $41.5 million or less. See 13 CFR 121.201.
22 44
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proposed rulemaking pursuant to 5
U.S.C. 553(b). As discussed previously,
consistent with section 553(b)(B) of the
APA, the agencies have determined for
good cause that general notice and
opportunity for public comment is
unnecessary, and therefore the agencies
are not issuing a notice of proposed
rulemaking. Accordingly, the agencies
have concluded that the RFA’s
requirements relating to initial and final
regulatory flexibility analysis do not
apply.
Nevertheless, the agencies seek
comment on whether, and the extent to
which, the interim final rule would
affect a significant number of small
entities.
E. Riegle Community Development and
Regulatory Improvement Act of 1994
Section 302(a) of the Riegle
Community Development and
Regulatory Improvement Act of 1994
(RCDRIA) 25 requires that each federal
banking agency, in determining the
effective date and administrative
compliance requirements for new
regulations that impose additional
reporting, disclosure, or other
requirements on insured depository
institutions, each federal banking
agency must consider, consistent with
principles of safety and soundness and
the public interest, any administrative
burdens that regulations would place on
depository institutions, including small
depository institutions, and customers
of depository institutions, as well as the
benefits of such regulations.
In addition, section 302(b) of RCDRIA
requires new regulations and
amendments to regulations that impose
additional reporting, disclosures, or
other new requirements on insured
depository institutions generally to take
effect on the first day of a calendar
quarter that begins on or after the date
on which the regulations are published
in final form.26 The agencies have
determined that the final rule would not
impose additional reporting, disclosure,
or other requirements; therefore, the
requirements of the RCDRIA do not
apply.
F. Unfunded Mandates Reform Act of
1995
The OCC analyzes proposed rules for
the factors listed in Section 202 of the
Unfunded Mandates Reform Act of 1995
before promulgating a final rule for
which a general notice of proposed
rulemaking was published.27 As
25 12
U.S.C. 4802(a).
U.S.C. 4802.
27 2 U.S.C. 1532.
26 12
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Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
discussed above, the OCC has
determined that publication of a general
notice of proposed rulemaking is not in
the public interest.
G. Use of Plain Language
Section 722 of the Gramm-LeachBliley Act 28 requires the Federal
banking agencies to use plain language
in all proposed and final rules
published after January 1, 2000. In light
of this requirement, the agencies have
sought to present the interim final rule
in a simple and straightforward manner
and invite comment on the use of plain
language. For example:
• Is the material organized to suit
your needs? If not, how could the
agencies present the interim final rule
more clearly?
• Are the requirements in the interim
final rule clearly stated? If not, how
could the interim final rule be more
clearly stated?
• Does the interim final rule contain
technical language or jargon that is not
clear? If so, which language requires
clarification?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the interim final
rule easier to understand? If so, what
changes would achieve that?
• Is this section format adequate? If
not, which of the sections should be
changed and how?
• What other changes can the
agencies incorporate to make the
interim final rule easier to understand?
List of Subjects
12 CFR Part 3
Administrative practice and
procedure, Capital, National banks,
Risk.
12 CFR Part 5
Administrative practice and
procedure, Federal savings associations,
National banks, Reporting and
recordkeeping requirements, Securities.
12 CFR Part 217
Administrative practice and
procedure, Banks, Banking, Capital,
Federal Reserve System, Holding
companies.
jbell on DSKJLSW7X2PROD with RULES
12 CFR Part 324
Administrative practice and
procedure, Banks, Banking, Confidential
business information, Investments,
Reporting and recordkeeping
requirements, Savings associations.
28 Public Law 106–102, 113 Stat. 1338, 1471, 12
U.S.C. 4809.
VerDate Sep<11>2014
16:10 Mar 19, 2021
Jkt 253001
Department of the Treasury
Office of the Comptroller of the
Currency
Authority and Issuance
For the reasons stated in the joint
preamble, the Office of the Comptroller
of the Currency amends chapter I of
Title 12 of the Code of Federal
Regulations as follows:
PART 3—CAPITAL ADEQUACY
STANDARDS
1. The authority citation for part 3
continues 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, 5412(b)(2)(B),
and Pub. L. 116–136, 134 Stat. 281.
2. Section 3.20 is amended by:
a. Redesignating footnotes 11 through
15 as footnotes 1 through 5, footnote 16
as footnote 7, and footnotes 17 through
20 as footnotes 8 through 11,
respectively;
■ b. Redesignating paragraph (c)(3) as
paragraph (c)(3)(i);
■ c. Adding paragraph (c)(3)(ii);
■ d. Redesignating paragraph (d)(4) as
paragraph (d)(4)(i); and
■ e. Adding paragraph (d)(4)(ii).
The additions and revisions read as
follows:
■
■
§ 3.20 Capital components and eligibility
criteria for regulatory capital instruments.
*
*
*
*
*
(c) * * *
(3) * * *
(ii) Any preferred stock instruments
issued under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.6
*
*
*
*
*
(d) * * *
(4) * * *
(ii) Any debt instruments issued
under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.12
*
*
*
*
*
PART 5—RULES, POLICIES, AND
PROCEDURES FOR CORPORATE
ACTIVITIES
3. The authority citation for part 5
continues to read as follows:
■
6 Public
Frm 00012
Fmt 4700
4. Section 5.47 is amended by adding
paragraph (j):
■
§ 5.47 Subordinated debt issued by a
national bank.
*
*
*
*
*
(j) Subordinated debt issued under the
Emergency Capital Investment Program.
A provision or covenant included in a
subordinated debt document does not
unduly restrict or otherwise act to
unduly limit the authority of a national
bank or interfere with the OCC’s
supervision of the national bank, for
purposes of paragraph (d)(2) of this
section, if the provision or covenant is
included pursuant to requirements
imposed by the U.S. Department of the
Treasury and the subordinated debt is
issued under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.
Board of Governors of the Federal
Reserve System
12 CFR Chapter II
Authority and Issuance
For the reasons stated in the
preamble, the Board of Governors of the
Federal Reserve System amends 12 CFR
chapter II as follows:
PART 217—CAPITAL ADEQUACY OF
BANK HOLDING COMPANIES,
SAVINGS AND LOAN HOLDING
COMPANIES, AND STATE MEMBER
BANKS (REGULATION Q)
5. The authority citation for part 217
continues to read as follows:
■
Authority: 12 U.S.C. 248(a), 321–338a,
481–486, 1462a, 1467a, 1818, 1828, 1831n,
1831o, 1831p–1, 1831w, 1835, 1844(b), 1851,
3904, 3906–3909, 4808, 5365, 5368, 5371,
5371 note, and sec. 4012, Pub. L. 116–136,
134 Stat. 281.
6. Section 217.20 is amended by:
a. Redesignating paragraph (c)(3) as
paragraph (c)(3)(i);
■ b. Adding paragraph (c)(3)(ii);
■ c. Redesignating paragraph (d)(4) as
paragraph (d)(4)(i); and
■ d. Adding paragraph (d)(4)(ii).
The additions and revisions read as
follows:
■
■
§ 217.20 Capital components and eligibility
criteria for regulatory capital instruments.
*
Law 116–260.
Law 116–260.
12 Public
PO 00000
Authority: 12 U.S.C. 1 et seq., 24a, 35, 93a,
214a, 215, 215a, 215a–1, 215a–2, 215a–3,
215c, 371d, 481, 1462a, 1463, 1464, 1817(j),
1831i, 1831u, 2901 et seq., 3101 et seq., 3907,
and 5412(b)(2)(B).
Sfmt 4700
*
*
(c) * * *
E:\FR\FM\22MRR1.SGM
22MRR1
*
*
Federal Register / Vol. 86, No. 53 / Monday, March 22, 2021 / Rules and Regulations
(3) * * *
(ii) Any preferred stock instrument
issued under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.16
*
*
*
*
*
(d) * * *
(4) * * *
(ii) Any debt instrument issued under
the U.S. Department of the Treasury’s
Emergency Capital Investment Program
pursuant to section 104A of the
Community Development Banking and
Financial Institutions Act of 1994,
added by the Consolidated
Appropriations Act, 2021.21
*
*
*
*
*
Federal Deposit Insurance Corporation
Blake J. Paulson,
Acting Comptroller of the Currency.
12 CFR Chapter III
Authority and Issuance
For the reasons stated in the
preamble, the Federal Deposit Insurance
Corporation amends chapter III of Title
12 of the Code of Federal Regulations as
follows:
PART 324—CAPITAL ADEQUACY OF
FDIC–SUPERVISED INSTITUTIONS
7. The authority citation for part 324
continues to read as follows:
■
8. Amend § 324.20 by:
a. Redesignating footnotes 17 through
21 as footnotes 18 through 22;
■ b. Redesignating paragraph (c)(3) as
paragraph (c)(3)(i);
■ c. Adding paragraph (c)(3)(ii);
■ d. Redesignating paragraph (d)(4) as
paragraph (d)(4)(i); and
■ e. Adding paragraph (d)(4)(ii).
The additions and revisions read as
follows:
jbell on DSKJLSW7X2PROD with RULES
■
■
§ 324.20 Capital components and eligibility
criteria for regulatory capital instruments.
*
16 Public
21 Public
*
*
*
Law 116–260.
Law 116–260.
VerDate Sep<11>2014
16:10 Mar 19, 2021
By order of the Board of Governors of the
Federal Reserve System.
Ann Misback,
Secretary of the Board.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Dated at Washington, DC, on or about
March 5, 2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021–05443 Filed 3–19–21; 8:45 am]
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); Pub. L. 115–174; section
4014 § 201, Pub. L. 116–136, 134 Stat. 281
(15 U.S.C. 9052).
*
(c) * * *
(3) * * *
(ii) Any preferred stock instruments
issued under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.17
*
*
*
*
*
(d) * * *
(4) * * *
(ii) Any debt instruments issued
under the U.S. Department of the
Treasury’s Emergency Capital
Investment Program pursuant to section
104A of the Community Development
Banking and Financial Institutions Act
of 1994, added by the Consolidated
Appropriations Act, 2021.23
*
*
*
*
*
BILLING CODE 4810–33–P; 6714–01–P; 6210–01–P
FARM CREDIT ADMINISTRATION
12 CFR Part 627
RIN 3052–AD46
Title IV Conservators and Receivers
Farm Credit Administration.
Direct final rule.
AGENCY:
ACTION:
The Farm Credit
Administration (FCA, we, or our) issues
this direct final rule to repeal certain
regulations in part 627 that have been
superseded by section 5412 of the
Agricultural Improvement Act of 2018
(2018 Farm Bill), which strengthens,
clarifies, and updates the authorities of
the Farm Credit System Insurance
Corporation (FSCIC or Insurance
Corporation) to act as a conservator or
receiver of a Farm Credit System (FCS
or System) institution.
DATES: If no significant adverse
comment is received on or before April
21, 2021, this regulation shall become
SUMMARY:
17 Public
23 Public
Jkt 253001
PO 00000
Law 116–260.
Law 116–260.
Frm 00013
Fmt 4700
Sfmt 4700
15081
effective no earlier than the expiration
of 30 days after publication in the
Federal Register during which either or
both Houses of Congress are in session.
Pursuant to 12 U.S.C. 2252(c)(1), FCA
will publish notification of the effective
date in the Federal Register.
ADDRESSES: For accuracy and efficiency
reasons, please submit comments by
email or through FCA’s website. We do
not accept comments submitted by
facsimiles (fax), as faxes are difficult for
us to process and achieve compliance
with section 508 of the Rehabilitation
Act of 1973. Please do not submit your
comment multiple times via different
methods. You may submit comments by
any of the following methods:
• Email: Send us an email at regcomm@fca.gov.
• FCA Website: https://www.fca.gov.
Click inside the ‘‘I want to. . .’’ field
near the top of the page; select
‘‘comment on a pending regulation’’
from the dropdown menu; and click
‘‘Go.’’ This takes you to an electronic
public comment form.
• Mail: Kevin J. Kramp, Director,
Office of Regulatory Policy, Farm Credit
Administration, 1501 Farm Credit Drive,
McLean, VA 22102–5090.
You may review copies of comments
we receive on our website at https://
www.fca.gov. Once you are on the
website, click inside the ‘‘I want to
. . .’’ field near the top of the page;
select ‘‘find comments on a pending
regulation’’ from the dropdown menu;
and click ‘‘Go.’’ This will take you to the
Comment Letters page where you can
select the regulation for which you
would like to read the public comments.
We will show your comments as
submitted, including any supporting
data provided, but for technical reasons
we may omit items such as logos and
special characters. Identifying
information that you provide, such as
phone numbers and addresses, will be
publicly available. However, we will
attempt to remove email addresses to
help reduce internet spam. You may
also review comments at our office in
McLean, Virginia. Please call us at (703)
883–4056 or email us at reg-comm@
fca.gov to make an appointment.
FOR FURTHER INFORMATION CONTACT:
Technical information: Ryan Leist,
LeistR@fca.gov, Senior Accountant, or
Jeremy R. Edelstein, EdelsteinJ@fca.gov,
Associate Director, Finance and Capital
Markets Team, Office of Regulatory
Policy, Farm Credit Administration,
McLean, VA 22102–5090, (703) 883–
4414, TTY (703) 883–4056 or
ORPMailbox@fca.gov; or
Legal information: Richard Katz,
KatzR@fca.gov, Senior Counsel, Office
E:\FR\FM\22MRR1.SGM
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]]>Agencies
[Federal Register Volume 86, Number 53 (Monday, March 22, 2021)]
[Rules and Regulations]
[Pages 15076-15081]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-05443]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 3 and 5
[Docket ID OCC-2021-0002]
RIN 1557-AF09
FEDERAL RESERVE SYSTEM
12 CFR Part 217
[Regulation Q; Docket No. R-1741 ]
RIN 7100-AG11
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 324
RIN 3064-AF73
Regulatory Capital Rule: Emergency Capital Investment Program
AGENCY: Office of the Comptroller of the Currency, Treasury (OCC);
Board of Governors of the Federal Reserve System (Board); and Federal
Deposit Insurance Corporation (FDIC).
ACTION: Interim final rule; request for public comment.
-----------------------------------------------------------------------
SUMMARY: In order to support and facilitate the timely implementation
and acceptance of the Congressionally authorized Emergency Capital
Investment Program (ECIP) for the Department of the Treasury to make
capital investments in low- and moderate-income community financial
institutions, the OCC, Board, and FDIC (together, the agencies) are
issuing an interim final rule that provides that preferred stock issued
under ECIP qualifies as additional tier 1 capital and that subordinated
debt issued under ECIP qualifies as tier 2 capital under the agencies'
capital rule.
DATES: This rule is effective on March 22, 2021. Comments must be
received on or before May 21, 2021.
ADDRESSES:
OCC: Commenters are encouraged to submit comments through the
Federal eRulemaking Portal, if possible. Please use the title
``Amendments to the Capital Rule to Facilitate the Emergency Capital
Investment Program'' to facilitate the organization and distribution of
the comments. You may submit comments by any of the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov/.
Enter ``Docket ID OCC-2021-0002'' in the Search Box and click
``Search.'' Public comments can be submitted via the ``Comment'' box
below the displayed document information or by clicking on the document
title and then clicking the ``Comment'' box on the top-left side of the
screen. For help with submitting effective comments please click on
``View Commenter's Checklist.'' For assistance with the Regulations.gov
site, please call (877) 378-5457 (toll free) or (703) 454-9859 Monday-
Friday, 9am-5pm ET or email [email protected].
Mail: Chief Counsel's Office, Attn: Comment Processing, Office of
the Comptroller of the Currency, 400 7th Street SW, Suite 3E-218,
Washington, DC 20219.
Hand Delivery/Courier: 400 7th Street SW, Suite 3E-218, Washington,
DC 20219.
Instructions: You must include ``OCC'' as the agency name and
``Docket ID OCC-2021-0002'' in your comment. In general, the OCC will
enter all comments received into the docket and publish the comments on
the Regulations.gov website without change, including any business or
personal information provided 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 include 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 action by the following method:
Go to https://www.regulations.gov/. Enter ``Docket ID OCC-2021-
0002'' in the Search box and click ``Search.'' Click on the
``Documents'' tab and then the document's title. After clicking the
document's title, click the ``Browse Comments'' tab. Comments can be
viewed and filtered by clicking on the ``Sort By'' drop-down on the
right side of the screen or the ``Refine Results'' options on the left
side of the screen. Supporting materials can be viewed by clicking on
the ``Documents'' tab and filtered by clicking on the ``Sort By'' drop-
down on the right side of the
[[Page 15077]]
screen or the ``Refine Documents Results'' options on the left side of
the screen. For assistance with the Regulations.gov site, please call
(877) 378-5457 (toll free) or (703) 454-9859 Monday-Friday, 9 a.m.-5
p.m. ET or email [email protected].
The docket may be viewed after the close of the comment period in
the same manner as during the comment period.
Board: You may submit comments, identified by Docket No. R-1741 and
RIN No. 7100-AG11, by any of the following methods:
Agency Website: https://www.federalreserve.gov. Follow the
instructions for submitting comments at https://www.federalreserve.gov/apps/foia/proposedregs.aspx.
Email: [email protected]. Include docket number and
RIN in the subject line of the message.
Fax: (202) 452-3819 or (202) 452-3102.
Mail: Ann E. Misback, 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 website at
https://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as
submitted, unless modified for technical reasons or to remove sensitive
personally identifiable information at the commenter's request. Public
comments may also be viewed electronically or in paper form in Room
3515, 1801 K Street NW, Washington, DC 20006 between 9:00 a.m. and 5:00
p.m. on weekdays.
FDIC: You may submit comments using any of the following methods:
Agency Website: https://www.fdic.gov/regulations/laws/federal.
Follow the instructions for submitting comments on the agency website.
Email: [email protected]. Include RIN 3064-AF73 on the subject line
of the message.
Mail: James P. Sheesley, Assistant Executive Secretary, Attention:
Comments RIN 3064-AF73, Federal Deposit Insurance Corporation, 550 17th
Street NW, Washington, DC 20429.
Hand Delivery: Comments may be hand delivered to the guard station
at the rear of the 550 17th Street NW building (located on F Street) on
business days between 7 a.m. and 5 p.m.
Public Inspection: All comments received, including any personal
information provided, will be posted generally without change to
https://www.fdic.gov/regulations/laws/federal.
FOR FURTHER INFORMATION CONTACT:
OCC: Margot Schwadron, Director, or Andrew Tschirhart, Risk Expert,
Capital Policy, (202) 649-6370; or Carl Kaminski, Special Counsel, or
Daniel Perez, Counsel, Chief Counsel's Office, (202) 649-5490, Office
of the Comptroller of the Currency, 400 7th Street SW, Washington, DC
20219.
Board: Constance Horsley, Deputy Associate Director, (202) 452-
5239, Naima Jefferson, Lead Financial Institution Policy Analyst, (202)
912-4613, Senait Kahsay, Senior Financial Institution Policy Analyst
II, (202) 245-4209, Eusebius Luk, Senior Financial Institution Policy
Analyst I, (202) 452-2874, Division of Supervision and Regulation;
Benjamin McDonough, Associate General Counsel, (202) 452-2036, Mark
Buresh, Senior Counsel, (202) 452-5270, Mary Watkins, Counsel, (202)
452-3722, Legal Division, Board of Governors of the Federal Reserve
System, 20th and C Streets NW, Washington, DC 20551.
FDIC: Benedetto Bosco, Chief, Capital Policy Section,
[email protected]; Noah Cuttler, Senior Policy Analyst,
[email protected]; [email protected]; Capital Markets Branch,
Division of Risk Management Supervision, (202) 898-6888; Gregory Feder,
Counsel, [email protected]; Suzanne Dawley, Counsel, [email protected];
Francis Kuo, Counsel, [email protected]; Amanda Ledig, Attorney,
[email protected]; Supervision and Legislation Branch, Legal Division,
Federal Deposit Insurance Corporation, 550 17th Street NW, Washington,
DC 20429. For the hearing impaired only, Telecommunication Device for
the Deaf (TDD), (800) 925-4618.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion
III. Request for Comment
IV. Administrative Law Matters
A. Administrative Procedure Act
B. Congressional Review Act
C. Paperwork Reduction Act
D. Regulatory Flexibility Act
E. Riegle Community Development and Regulatory Improvement Act
of 1994
F. Unfunded Mandates Reform Act of 1995
G. Use of Plain Language
I. Background
On December 27, 2020, the Consolidated Appropriations Act, 2021,\1\
was signed into law and added a new Section 104A to the Community
Development Banking and Financial Institutions Act of 1994 (the Act).
Section 104A of the Act authorizes the Secretary of the Treasury to
establish the Emergency Capital Investment Program (ECIP or Program)
through which the Department of the Treasury (Treasury) can make
capital investments in certain low- and moderate-income community
financial institutions. The Act states that the purpose of these
capital investments is to support the efforts of low- and moderate-
income community financial institutions to, among other things, provide
loans, grants, and forbearance for small businesses, minority-owned
businesses, and consumers in low-income and underserved communities,
including persistent poverty counties, which may be disproportionately
impacted by the economic effects of the Coronavirus 2019 (COVID-19)
event.\2\ Treasury's authority to make capital investments under ECIP
is time limited. The Program will end six months after the date on
which the national emergency concerning the COVID-19 outbreak
terminates.\3\
---------------------------------------------------------------------------
\1\ Public Law 116-260.
\2\ Id.
\3\ Id.
---------------------------------------------------------------------------
Under ECIP, a financial institution is generally eligible to
receive capital investments from Treasury if it is a low- and moderate-
income community financial institution, which is defined by the Act to
include any financial institution that is (1) a community development
financial institution or minority depository institution,\4\ and (2) an
insured depository institution, bank holding company, savings and loan
holding company, or federally insured credit union (collectively,
eligible banking organizations).
---------------------------------------------------------------------------
\4\ The terms ``Community Development Financial Institution''
and ``Minority Depository Institution'' are defined in section 104A
of the Act.
---------------------------------------------------------------------------
Under ECIP, Treasury can acquire senior preferred stock from
eligible banking organizations (Senior Preferred Stock). Additionally,
if the Secretary of the Treasury determines that an eligible banking
organization cannot feasibly issue preferred stock, such as a bank
organized as an S corporation \5\ or mutual banking organization,
Treasury can acquire subordinated debt instruments (Subordinated Debt)
from such an eligible banking organization.\6\ Under the Act, Treasury
is required to seek to establish the terms of preferred stock issued
under ECIP to enable such instruments to qualify as tier 1 capital
under the respective capital rule of the OCC, Board, and FDIC
(together, the agencies).\7\
---------------------------------------------------------------------------
\5\ An S corporation is corporation that has elected Subchapter
S corporation status under the Internal Revenue Code.
\6\ Section 104A(d)(5)(B) of the Act.
\7\ Section 104A(f) of the Act.
---------------------------------------------------------------------------
On March 4, 2021, Treasury published the terms of the Senior
[[Page 15078]]
Preferred Stock and Subordinated Debt.\8\ As described in the terms
published by Treasury, Senior Preferred Stock issued under ECIP will be
noncumulative, perpetual preferred stock that is senior to the issuer's
common stock and pari passu with (or, in some cases, senior to) the
issuer's most senior class of existing preferred stock. Subordinated
Debt issued under ECIP will be unsecured subordinated debt. The
Subordinated Debt will rank junior to all other debt of the issuer
except that it will rank senior to mutual capital certificates or
similar instruments issued by a mutual banking organization and to any
equity instruments issued by an S corporation.
---------------------------------------------------------------------------
\8\ The term sheets for the Senior Preferred Stock and
Subordinated Debt may be found on Treasury's website. For a complete
description of the terms of the instruments, see https://home.treasury.gov/policy-issues/cares/emergency-capital-investment-program.
---------------------------------------------------------------------------
Under the terms of Senior Preferred Stock, participating eligible
banking organizations will not be required to pay dividends until two
years after issuance of the Senior Preferred Stock, and then will be
subject to a noncumulative dividend with a rate not to exceed 2 percent
that may fluctuate based on certain lending growth criteria applied to
the issuer. A participating eligible banking organization is prohibited
from paying dividends under certain circumstances, including if the
participating eligible banking organization determines that the payment
would be detrimental to the financial health of the institution. Under
the terms of the Subordinated Debt, interest payments on the
Subordinated Debt would be subject to determinants and constraints
similar to those described above, but the interest payments would be
cumulative and deferrable.
The Act requires Treasury to establish restrictions on executive
compensation, share buybacks, and dividend payments for issuers of
capital instruments issued under ECIP, as well as restrictions on
conflicts of interest.\9\ The Act permits Treasury to establish other
terms and conditions for participation in ECIP. On March 4, 2021,
Treasury issued an interim final rule that established restrictions on
executive compensation, capital distributions, and luxury expenditures
for ECIP.\10\
---------------------------------------------------------------------------
\9\ Section 104A(h) of the Act.
\10\ See Emergency Capital Investment Program--Restrictions on
Executive Compensation, Share Buybacks, and Dividends, https://home.treasury.gov/system/files/136/ECIP-interim-final-rule.pdf.
---------------------------------------------------------------------------
II. Discussion
The Senior Preferred Stock and Subordinated Debt will feature
characteristics that are similar to those of instruments that qualify
under the agencies' capital rule as additional tier 1 capital and tier
2 capital, respectively. As discussed above, the Act directs the
Secretary of the Treasury to seek to establish the terms of the Senior
Preferred Stock to enable these instruments to receive ``Tier 1''
capital treatment. Further, the establishment of ECIP and the capital
investments being made thereunder help support the efforts of low- and
moderate-income community financial institutions to provide financial
intermediary services in low-income and underserved communities. To
facilitate implementation of ECIP, the agencies are revising the
capital rule to provide that the Senior Preferred Stock will qualify as
additional tier 1 capital and Subordinated Debt will qualify as tier 2
capital.11 12 These revisions are based on the terms and
conditions of the Senior Preferred Stock and Subordinated Debt provided
in the Senior Preferred Stock term sheet and the Subordinated Debt term
sheet published by the U.S. Department of the Treasury on March 4,
2021. If the terms and conditions for the Senior Preferred Stock or
Subordinated Debt are modified in the future such that they differ
materially from the terms and conditions provided in the term sheets,
the agencies may reevaluate whether such capital treatment remains
appropriate.
---------------------------------------------------------------------------
\11\ See 12 CFR 3.20 (OCC); 12 CFR 217.20 (Board); 12 CFR 324.20
(FDIC).
\12\ Certain small bank holding companies and savings and loan
holdings companies are subject to the Board's Small Bank Holding
Company and Savings and Loan Holding Company Policy Statement (12
CFR part 225, app. C) rather than the Board's capital rule. The
Policy Statement requires subject companies to maintain specified
debt-to-equity ratios and specifies how certain types of debt
instruments and preferred stock instruments are to be included for
purposes of the debt-to-equity ratios. For purposes of the Policy
Statement, Senior Preferred Stock issued under ECIP is redeemable
preferred stock, which is subject to certain limitations under the
Policy Statement, and Subordinated Debt issued under ECIP is debt.
---------------------------------------------------------------------------
In addition, the OCC is adding language to its licensing rule,
which sets forth certain requirements applicable to subordinated debt
issued by a national bank. Paragraph (d)(2) of section 5.47 prohibits a
national bank from including in a subordinated debt note any provision
or covenant that unduly restricts or otherwise acts to unduly limit the
authority of a national bank or interferes with the OCC's supervision
of the national bank. To facilitate the ability of a national bank to
issue subordinated debt through ECIP, the OCC is adding new paragraph
(j) to section 5.47. This new paragraph clarifies that provisions and
covenants added to a subordinated debt document pursuant to
requirements imposed by the Treasury Department for purposes of ECIP
will not be considered, under paragraph (d)(2) of section 5.47, to
unduly restrict or otherwise act to unduly limit the authority of a
national bank or interfere with the OCC's supervision of the national
bank.
III. Request for Comment
The agencies seek comment on all aspects of this interim final
rule. In particular, the agencies seek comment on the regulatory
capital treatment of the Senior Preferred Stock and Subordinated Debt
issued under ECIP and on the following specific question:
Question: For banking organizations subject to the Board's Small
Bank Holding Company and Savings and Loan Holding Company Policy
Statement, what are the advantages and disadvantages of including
Senior Preferred Stock as equity and Subordinated Debt as debt for
purposes of meeting the debt-to-equity ratio? What are the advantages
and disadvantages of including Senior Preferred Stock subject to the
limits described in the Policy Statement as redeemable preferred stock?
What are the advantages and disadvantages of excluding Subordinated
Debt from debt for purposes of the debt-to-equity ratio?
IV. Administrative Law Matters
A. Administrative Procedure Act
The agencies are issuing the interim final rule without prior
notice and the opportunity for public comment and the 30-day delayed
effective date ordinarily prescribed by the Administrative Procedure
Act (APA).\13\ Pursuant to section 553(b)(B) of the APA, general notice
and the opportunity for public comment are not required with respect to
a rulemaking when an ``agency for good cause finds (and incorporates
the finding and a brief statement of reasons therefore in the rules
issued) that notice and public procedure thereon are impracticable,
unnecessary, or contrary to the public interest.'' \14\
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\13\ 5 U.S.C. 553.
\14\ 5 U.S.C. 553(b)(B).
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As discussed above, the purpose of capital investments made under
ECIP is to support the efforts of low- and moderate-income community
financial institutions and the communities they serve, which may be
disproportionately impacted by the economic effects of the COVID-19
event. The Act also requires Treasury to seek to establish the terms of
senior preferred stock instruments issued under the Program such that
these instruments would be considered
[[Page 15079]]
additional tier 1 capital under the agencies' capital rule.
The agencies believe that the public interest is best served by
implementing the interim final rule immediately upon publication in the
Federal Register. The interim final rule will facilitate implementation
of ECIP by providing certainty that the Senior Preferred Stock may be
included in additional tier 1 capital and Subordinated Debt may be
included in tier 2 capital under the capital rule. As noted above,
Treasury's authority to make new capital investments in ECIP will end
six months after the date on which the national emergency concerning
the COVID-19 outbreak declared by the President on March 13, 2020,
under the National Emergencies Act terminates.\15\ For these reasons,
the agencies find that there is good cause consistent with the public
interest to issue the rule without advance notice and comment.\16\
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\15\ Public Law 116-260.
\16\ 5 U.S.C. 553(b)(B).
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The APA also requires a 30-day delayed effective date, except for
(1) substantive rules that grant or recognize an exemption or relieve a
restriction; (2) interpretative rules and statements of policy; or (3)
as otherwise provided by the agency for good cause.\17\ Because the
interim final rule relieves a restriction, the interim final rule is
exempt from the APA's delayed effective date requirement.\18\
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\17\ 5 U.S.C. 553(d).
\18\ 5 U.S.C. 553(d)(1).
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In addition, the agencies find good cause to publish the interim
final rule with an immediate effective date for the same reasons set
forth above under the discussion of section 553(b)(B) of the APA. While
the agencies believe that there is good cause to issue the interim
final rule without advance notice and comment and with an immediate
effective date, as noted, the agencies are interested in the views of
the public on all aspects of the interim final rule.
B. Congressional Review Act
For purposes of Congressional Review Act (CRA), the Office of
Management and Budget (OMB) makes a determination as to whether a final
rule constitutes a ``major'' rule.\19\ If a rule is deemed a ``major
rule'' by the OMB, the CRA generally provides that the rule may not
take effect until at least 60 days following its publication.\20\
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\19\ 5 U.S.C. 801 et seq.
\20\ 5 U.S.C. 801(a)(3).
---------------------------------------------------------------------------
The CRA defines a ``major rule'' as any rule that the Administrator
of the Office of Information and Regulatory Affairs of the OMB finds
has resulted in or is likely to result in (A) an annual effect on the
economy of $100,000,000 or more; (B) a major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies or geographic regions; or (C) significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic and export markets.
For the same reasons set forth above, the agencies are adopting the
interim final rule without the delayed effective date generally
prescribed under the CRA. The delayed effective date required by the
CRA does not apply to any rule for which an agency for good cause finds
(and incorporates the finding and a brief statement of reasons therefor
in the rule issued) that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest.\21\
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\21\ 5 U.S.C. 808.
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As required by the CRA, the agencies will submit the interim final
rule and other appropriate reports to Congress and the Government
Accountability Office for review.
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (PRA) states that no agency may
conduct or sponsor, nor is the respondent required to respond to, an
information collection unless it displays a currently valid OMB control
number.\22\ The agencies have reviewed this interim final rule and have
determined that this interim final rule does not introduce any new
information collections or revise any existing information collections
pursuant to the PRA for the agencies. In addition, the Board has
reviewed this interim final rule pursuant to authority delegated by
OMB. Therefore, no submissions will be made by the agencies to OMB for
review.
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\22\ 44 U.S.C. 3501-3521.
---------------------------------------------------------------------------
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \23\ requires an agency to
consider whether the rules it proposes will have a significant economic
impact on a substantial number of small entities.\24\ The RFA applies
only to rules for which an agency publishes a general notice of
proposed rulemaking pursuant to 5 U.S.C. 553(b). As discussed
previously, consistent with section 553(b)(B) of the APA, the agencies
have determined for good cause that general notice and opportunity for
public comment is unnecessary, and therefore the agencies are not
issuing a notice of proposed rulemaking. Accordingly, the agencies have
concluded that the RFA's requirements relating to initial and final
regulatory flexibility analysis do not apply.
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\23\ 5 U.S.C. 601 et seq.
\24\ Under regulations issued by the Small Business
Administration, a small entity includes a depository institution,
bank holding company, or savings and loan holding company with total
assets of $600 million or less and trust companies with total assets
of $41.5 million or less. See 13 CFR 121.201.
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Nevertheless, the agencies seek comment on whether, and the extent
to which, the interim final rule would affect a significant number of
small entities.
E. Riegle Community Development and Regulatory Improvement Act of 1994
Section 302(a) of the Riegle Community Development and Regulatory
Improvement Act of 1994 (RCDRIA) \25\ requires that each federal
banking agency, in determining the effective date and administrative
compliance requirements for new regulations that impose additional
reporting, disclosure, or other requirements on insured depository
institutions, each federal banking agency must consider, consistent
with principles of safety and soundness and the public interest, any
administrative burdens that regulations would place on depository
institutions, including small depository institutions, and customers of
depository institutions, as well as the benefits of such regulations.
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\25\ 12 U.S.C. 4802(a).
---------------------------------------------------------------------------
In addition, section 302(b) of RCDRIA requires new regulations and
amendments to regulations that impose additional reporting,
disclosures, or other new requirements on insured depository
institutions generally to take effect on the first day of a calendar
quarter that begins on or after the date on which the regulations are
published in final form.\26\ The agencies have determined that the
final rule would not impose additional reporting, disclosure, or other
requirements; therefore, the requirements of the RCDRIA do not apply.
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\26\ 12 U.S.C. 4802.
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F. Unfunded Mandates Reform Act of 1995
The OCC analyzes proposed rules for the factors listed in Section
202 of the Unfunded Mandates Reform Act of 1995 before promulgating a
final rule for which a general notice of proposed rulemaking was
published.\27\ As
[[Page 15080]]
discussed above, the OCC has determined that publication of a general
notice of proposed rulemaking is not in the public interest.
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\27\ 2 U.S.C. 1532.
---------------------------------------------------------------------------
G. Use of Plain Language
Section 722 of the Gramm-Leach-Bliley Act \28\ requires the Federal
banking agencies to use plain language in all proposed and final rules
published after January 1, 2000. In light of this requirement, the
agencies have sought to present the interim final rule in a simple and
straightforward manner and invite comment on the use of plain language.
For example:
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\28\ Public Law 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809.
---------------------------------------------------------------------------
Is the material organized to suit your needs? If not, how
could the agencies present the interim final rule more clearly?
Are the requirements in the interim final rule clearly
stated? If not, how could the interim final rule be more clearly
stated?
Does the interim final rule contain technical language or
jargon that is not clear? If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the interim final rule easier to
understand? If so, what changes would achieve that?
Is this section format adequate? If not, which of the
sections should be changed and how?
What other changes can the agencies incorporate to make
the interim final rule easier to understand?
List of Subjects
12 CFR Part 3
Administrative practice and procedure, Capital, National banks,
Risk.
12 CFR Part 5
Administrative practice and procedure, Federal savings
associations, National banks, Reporting and recordkeeping requirements,
Securities.
12 CFR Part 217
Administrative practice and procedure, Banks, Banking, Capital,
Federal Reserve System, Holding companies.
12 CFR Part 324
Administrative practice and procedure, Banks, Banking, Confidential
business information, Investments, Reporting and recordkeeping
requirements, Savings associations.
Department of the Treasury
Office of the Comptroller of the Currency
Authority and Issuance
For the reasons stated in the joint preamble, the Office of the
Comptroller of the Currency amends chapter I of Title 12 of the Code of
Federal Regulations as follows:
PART 3--CAPITAL ADEQUACY STANDARDS
0
1. The authority citation for part 3 continues 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, 5412(b)(2)(B), and
Pub. L. 116-136, 134 Stat. 281.
0
2. Section 3.20 is amended by:
0
a. Redesignating footnotes 11 through 15 as footnotes 1 through 5,
footnote 16 as footnote 7, and footnotes 17 through 20 as footnotes 8
through 11, respectively;
0
b. Redesignating paragraph (c)(3) as paragraph (c)(3)(i);
0
c. Adding paragraph (c)(3)(ii);
0
d. Redesignating paragraph (d)(4) as paragraph (d)(4)(i); and
0
e. Adding paragraph (d)(4)(ii).
The additions and revisions read as follows:
Sec. 3.20 Capital components and eligibility criteria for regulatory
capital instruments.
* * * * *
(c) * * *
(3) * * *
(ii) Any preferred stock instruments issued under the U.S.
Department of the Treasury's Emergency Capital Investment Program
pursuant to section 104A of the Community Development Banking and
Financial Institutions Act of 1994, added by the Consolidated
Appropriations Act, 2021.\6\
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\6\ Public Law 116-260.
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* * * * *
(d) * * *
(4) * * *
(ii) Any debt instruments issued under the U.S. Department of the
Treasury's Emergency Capital Investment Program pursuant to section
104A of the Community Development Banking and Financial Institutions
Act of 1994, added by the Consolidated Appropriations Act, 2021.\12\
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\12\ Public Law 116-260.
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* * * * *
PART 5--RULES, POLICIES, AND PROCEDURES FOR CORPORATE ACTIVITIES
0
3. The authority citation for part 5 continues to read as follows:
Authority: 12 U.S.C. 1 et seq., 24a, 35, 93a, 214a, 215, 215a,
215a-1, 215a-2, 215a-3, 215c, 371d, 481, 1462a, 1463, 1464, 1817(j),
1831i, 1831u, 2901 et seq., 3101 et seq., 3907, and 5412(b)(2)(B).
0
4. Section 5.47 is amended by adding paragraph (j):
Sec. 5.47 Subordinated debt issued by a national bank.
* * * * *
(j) Subordinated debt issued under the Emergency Capital Investment
Program. A provision or covenant included in a subordinated debt
document does not unduly restrict or otherwise act to unduly limit the
authority of a national bank or interfere with the OCC's supervision of
the national bank, for purposes of paragraph (d)(2) of this section, if
the provision or covenant is included pursuant to requirements imposed
by the U.S. Department of the Treasury and the subordinated debt is
issued under the U.S. Department of the Treasury's Emergency Capital
Investment Program pursuant to section 104A of the Community
Development Banking and Financial Institutions Act of 1994, added by
the Consolidated Appropriations Act, 2021.
Board of Governors of the Federal Reserve System
12 CFR Chapter II
Authority and Issuance
For the reasons stated in the preamble, the Board of Governors of
the Federal Reserve System amends 12 CFR chapter II as follows:
PART 217--CAPITAL ADEQUACY OF BANK HOLDING COMPANIES, SAVINGS AND
LOAN HOLDING COMPANIES, AND STATE MEMBER BANKS (REGULATION Q)
0
5. The authority citation for part 217 continues to read as follows:
Authority: 12 U.S.C. 248(a), 321-338a, 481-486, 1462a, 1467a,
1818, 1828, 1831n, 1831o, 1831p-1, 1831w, 1835, 1844(b), 1851, 3904,
3906-3909, 4808, 5365, 5368, 5371, 5371 note, and sec. 4012, Pub. L.
116-136, 134 Stat. 281.
0
6. Section 217.20 is amended by:
0
a. Redesignating paragraph (c)(3) as paragraph (c)(3)(i);
0
b. Adding paragraph (c)(3)(ii);
0
c. Redesignating paragraph (d)(4) as paragraph (d)(4)(i); and
0
d. Adding paragraph (d)(4)(ii).
The additions and revisions read as follows:
Sec. 217.20 Capital components and eligibility criteria for
regulatory capital instruments.
* * * * *
(c) * * *
[[Page 15081]]
(3) * * *
(ii) Any preferred stock instrument issued under the U.S.
Department of the Treasury's Emergency Capital Investment Program
pursuant to section 104A of the Community Development Banking and
Financial Institutions Act of 1994, added by the Consolidated
Appropriations Act, 2021.\16\
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\16\ Public Law 116-260.
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* * * * *
(d) * * *
(4) * * *
(ii) Any debt instrument issued under the U.S. Department of the
Treasury's Emergency Capital Investment Program pursuant to section
104A of the Community Development Banking and Financial Institutions
Act of 1994, added by the Consolidated Appropriations Act, 2021.\21\
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\21\ Public Law 116-260.
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* * * * *
Federal Deposit Insurance Corporation
12 CFR Chapter III
Authority and Issuance
For the reasons stated in the preamble, the Federal Deposit
Insurance Corporation amends chapter III of Title 12 of the Code of
Federal Regulations as follows:
PART 324--CAPITAL ADEQUACY OF FDIC-SUPERVISED INSTITUTIONS
0
7. The authority citation for part 324 continues 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);
Pub. L. 115-174; section 4014 Sec. 201, Pub. L. 116-136, 134 Stat.
281 (15 U.S.C. 9052).
0
8. Amend Sec. 324.20 by:
0
a. Redesignating footnotes 17 through 21 as footnotes 18 through 22;
0
b. Redesignating paragraph (c)(3) as paragraph (c)(3)(i);
0
c. Adding paragraph (c)(3)(ii);
0
d. Redesignating paragraph (d)(4) as paragraph (d)(4)(i); and
0
e. Adding paragraph (d)(4)(ii).
The additions and revisions read as follows:
Sec. 324.20 Capital components and eligibility criteria for
regulatory capital instruments.
* * * * *
(c) * * *
(3) * * *
(ii) Any preferred stock instruments issued under the U.S.
Department of the Treasury's Emergency Capital Investment Program
pursuant to section 104A of the Community Development Banking and
Financial Institutions Act of 1994, added by the Consolidated
Appropriations Act, 2021.\17\
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\17\ Public Law 116-260.
---------------------------------------------------------------------------
* * * * *
(d) * * *
(4) * * *
(ii) Any debt instruments issued under the U.S. Department of the
Treasury's Emergency Capital Investment Program pursuant to section
104A of the Community Development Banking and Financial Institutions
Act of 1994, added by the Consolidated Appropriations Act, 2021.\23\
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\23\ Public Law 116-260.
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* * * * *
Blake J. Paulson,
Acting Comptroller of the Currency.
By order of the Board of Governors of the Federal Reserve
System.
Ann Misback,
Secretary of the Board.
Federal Deposit Insurance Corporation.
By order of the Board of Directors.
Dated at Washington, DC, on or about March 5, 2021.
James P. Sheesley,
Assistant Executive Secretary.
[FR Doc. 2021-05443 Filed 3-19-21; 8:45 am]
BILLING CODE 4810-33-P; 6714-01-P; 6210-01-P
