[Federal Register Volume 79, Number 244 (Friday, December 19, 2014)]
[Proposed Rules]
[Pages 75759-75763]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-29561]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
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 

  Federal Register / Vol. 79, No. 244 / Friday, December 19, 2014 / 
Proposed Rules  

[[Page 75759]]



FEDERAL RESERVE SYSTEM

12 CFR Part 217

[Docket No. R-1506]
RIN 7100-AE 27


Regulatory Capital Rules: Regulatory Capital, Proposed Rule 
Demonstrating Application of Common Equity Tier 1 Capital Qualification 
Criteria; Regulation Q

AGENCY: Board of Governors of the Federal Reserve System (Board).

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Board is inviting public comment on amendments to the 
Board's revised capital framework (Regulation Q) that would illustrate 
how the Board would apply the common equity tier 1 capital 
qualification criteria to depository institution holding companies that 
are organized in forms other than as stock corporations (``proposed 
rule''). The proposed rule discusses some of the qualification criteria 
for common equity tier 1 capital under Regulation Q and provides 
examples of how the Board would apply the criteria in specific 
situations involving partnerships and limited liability companies. In 
addition, the proposed rule would amend Regulation Q to address unique 
issues presented by certain savings and loan holding companies that are 
trusts and by depository institution holding companies that are 
employee stock ownership plans.

DATES: Comments must be received by February 28, 2015.

ADDRESSES: You may submit comments, identified by Docket No. R-1506 and 
RIN 7100-AE 27 ``Regulatory Capital, Application of Common Equity Tier 
1 Capital Qualification Criteria,'' by any of the following methods:
    Board of Governors of the Federal Reserve System:
     Agency Web site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/apps/foia/proposedregs.aspx.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the 
Board's docket number in the subject line of the message.
     Facsimile: (202) 452-3819 or (202) 452-3102.
     Mail: Robert deV. Frierson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue NW., 
Washington, DC 20551.
     Instructions: All public comments are available from the 
Board's Web site at http://www.federalreserve.gov/apps/foia/proposedregs.aspx as submitted, unless modified for technical reasons. 
Accordingly, your comments will not be edited to remove any identifying 
or contact information. Public comments also may be viewed 
electronically or in paper form in Room MP-500 of the Board's Martin 
Building (20th and C Streets NW.) between 9:00 a.m. and 5 p.m. on 
weekdays.

FOR FURTHER INFORMATION CONTACT: Alison Thro, Assistant General 
Counsel, (202) 452-3236, Christine Graham, Counsel, (202) 452-3005, or 
Mark Buresh, Attorney, (202) 452-5270, Legal Division; or Thomas 
Boemio, Manager, (202) 452-2982, Juan Climent, Manager, (202) 872-7526, 
or Page Conkling, Supervisory Financial Analyst, (202) 912-4647, 
Division of Banking Supervision and Regulation, Board of Governors of 
the Federal Reserve System, 20th Street and Constitution Avenue NW., 
Washington, DC 20551. Users of Telecommunication Device for Deaf (TDD) 
only, call (202) 263-4869.

SUPPLEMENTARY INFORMATION:

I. Background

    In July 2013, the Board approved a final rule \1\ (Regulation Q) 
that enhances and replaces the capital adequacy guidelines for state 
member banks \2\ and bank holding companies \3\ (collectively, capital 
adequacy guidelines), and implements capital adequacy rules for savings 
and loan holding companies (other than those substantially engaged in 
commercial activities or insurance underwriting activities). Regulation 
Q increases the quality and quantity of capital that must be maintained 
by institutions subject to the rule by raising the minimum capital 
ratios and imposing more stringent criteria for capital instruments 
that are intended to qualify as regulatory capital. The definition of 
common equity tier 1 capital in Regulation Q is designed to ensure that 
qualifying instruments do not include features that would cause an 
organization's condition to weaken during a period of significant 
financial and economic stress.\4\
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    \1\ 78 FR 62018 (October 11, 2013) (codified at 12 part CFR 
217).
    \2\ 12 CFR part 208, appendices A, B, and E.
    \3\ 12 CFR part 225, appendices A, D, and E.
    \4\ 12 CFR 217.20(b); 78 FR 62018, 62044.
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A. Description of the Proposed Rule

    The proposed rule describes how the Board would apply the 
qualification criteria for common equity tier 1 capital under 
Regulation Q to instruments issued by bank holding companies and 
savings and loan holding companies (holding companies) that are 
organized as legal entities other than stock corporations.
    The proposed rule focuses in particular on the qualification 
criteria that relate to the economic rights of common equity tier 1 
capital instruments relative to the capital instruments issued by 
holding companies organized in forms other than as stock corporations. 
The proposed rule provides examples of instruments issued by limited 
liability companies and partnerships, discusses features that would 
prevent certain instruments from qualifying as common equity tier 1 
capital, and offers potential solutions for holding companies to 
resolve these qualification issues. The examples provided in the 
proposed rule are based on structures that have been reviewed by the 
Board and demonstrate how the Board would apply the common equity tier 
1 capital qualification criteria to capital instruments with the same 
or similar features. Holding companies should review their 
organizational documents consistent with this proposed rule in order to 
determine whether their capital instruments comply with the Regulation 
Q qualification criteria. If a holding company determines that some or 
all of its capital instruments do not meet the specific qualification 
criteria under Regulation Q, the company may need to take steps to 
ensure that it is in

[[Page 75760]]

compliance with Regulation Q, including modifying its capital structure 
or the governing documentation of specific capital instruments.\5\
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    \5\ Entities whose capital instruments do not meet the 
qualification criteria under Regulation Q could potentially meet the 
minimum capital ratios in other ways, such as through retained 
earnings. See e.g., 12 CFR 217.20(b)(2) through (5).
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B. Timeframe for Implementation

    Because the proposed rule provides specific guidance on the 
application of the qualification criteria to particular structures, the 
Board recognizes that some entities may need time to evaluate or revise 
their capital instruments. Therefore, the Board would expect that all 
holding companies organized in forms other than as stock corporations 
that are subject to Regulation Q and have issued capital instruments 
that would not qualify as common equity tier 1 capital due to Sec.  
217.20 because of the requirements set forth in proposed Sec.  217.501 
would be in compliance with the proposed rule by January 1, 2016, 
except as discussed below. The proposed rule would provide this 
temporary exemption to allow companies to make necessary changes to 
comply with Regulation Q.

C. Inapplicability of the Requirements to Estate Trust Savings and Loan 
Holding Companies

    As noted above, Regulation Q implements capital adequacy rules for 
savings and loan holding companies (other than those substantially 
engaged in commercial activities or insurance underwriting activities). 
Approximately 120 personal or family trusts (collectively, ``estate 
trusts'') qualify as saving and loan holding companies and would be 
subject to Regulation Q beginning on January 1, 2015.\6\
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    \6\ See 12 U.S.C. 1467a(a)(3)(B); 12 U.S.C. 1841(b); 12 CFR 
238.2(m)(2); 12 CFR 225.2(d)(3) (testamentary trust exemption).
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    The Board understands that many of the estate trust SLHCs do not 
issue capital instruments and would be unable to meet the minimum 
regulatory capital ratios under Regulation Q. Further, the Board 
understands that many of the estate trust SLHCs do not hold retained 
earnings due to their nature as non-business personal or family trusts. 
In order to comply with the technical requirements of Regulation Q, 
estate trust SLHCs would likely entail significant burden and expense 
to develop and implement the management information systems necessary 
to prepare financial statements.
    To address these issues, the Board is developing a proposal to 
apply alternative regulatory capital requirements to estate trust SLHCs 
that take into account their existing capital structure and activities, 
consistent with section 171 of the Dodd-Frank Act. Until the Board 
adopts such a proposal or until further notice, the Board will not 
require estate trust SLHCs to comply with Regulation Q. The proposed 
rule would temporarily exempt estate trusts from the requirements of 
Regulation Q until the Board adopts alternative regulatory 
requirements.

D. Inapplicability of the Requirements to Employee Stock Ownership 
Plans That Are Depository Institution Holding Companies

    Employee Stock Ownership Plans (ESOPs) are entities created as part 
of employee benefits arrangements that hold shares of the sponsoring 
entities' stock. There are ESOPs that are bank holding companies and 
savings and loan holding companies (ESOP holding companies), generally 
due to their ownership interest in the banking organization that 
sponsors the ESOP. Under generally accepted accounting principles, the 
assets and liabilities of ESOP holding companies are consolidated onto 
the balance sheet of the organization that sponsors the ESOP, which 
would be either a depository institution or a holding company that may 
be subject to Regulation Q.\7\ The Board is developing a proposal to 
revise Regulation Q to clarify the treatment of ESOP holding companies 
under the regulatory capital rules. Until the Board adopts such a 
proposal or until further notice, the Board will evaluate the 
compliance of the ESOP with Regulation Q by looking to the regulatory 
capital of the sponsor banking organization. The proposed rule would 
temporarily exempt ESOP holding companies from Regulation Q until the 
Board finalizes the clarifying revisions.
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    \7\ See the American Institute of Certified Public Accountants 
(AICPA) Statement of Position 93-6.
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II. Request for Comment

    The Board invites comment on the proposed rule and specifically 
invites comment on following aspects of the proposed rule:
    1. What features of capital instruments that are not described in 
the proposed rule could affect whether a capital instrument of a non-
stock corporation qualifies as common equity tier 1 capital?
    2. What features of capital instruments issued by non-stock 
corporations could raise issues with qualification as additional tier 1 
or tier 2 capital similar to the issues related to qualification as 
common equity tier 1 capital discussed in the proposed rule?
    3. How might the Board revise the proposed rule to better 
illustrate the application of the common equity tier 1 capital 
qualification criteria to the structures discussed?

III. Regulatory Analysis

A. Paperwork Reduction Act (PRA)

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3506; 5 CFR 1320, Appendix A.1), the Board reviewed the proposed rule 
under the authority delegated to the Board by the Office of Management 
and Budget. The proposed rule contains no requirements subject to the 
PRA.

B. Regulatory Flexibility Act Analysis

    The Board is providing an initial regulatory flexibility analysis 
with respect to this proposed rule. As discussed above, the proposed 
rule describes how the Board would apply the qualification criteria for 
common equity tier 1 capital under Regulation Q to instruments issued 
by depository institution holding companies and state member banks that 
are organized as legal entities other than stock corporations. The 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), generally 
requires that an agency prepare and make available an initial 
regulatory flexibility analysis in connection with a notice of proposed 
rulemaking. Under regulations issued by the Small Business 
Administration, a small entity includes a bank holding company, bank, 
or savings and loan holding company with assets of $550 million or less 
(small banking organization).\8\ As of June 30, 2014, there were 
approximately 657 small state member banks, 3,719 small bank holding 
companies, and 254 small savings and loan holding companies.
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    \8\ See 13 CFR 121.201. Effective July 14, 2014, the Small 
Business Administration revised the size standards for banking 
organizations to $550 million in assets from $500 million in assets. 
79 FR 33647 (June 12, 2014).
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    The proposed rule would apply to top-tier depository institution 
holding companies and state member banks that are subject to Regulation 
Q. As a result, many small bank holding companies would not be affected 
because they are subject to the Board's Small Bank Holding Company 
policy statement rather than Regulation Q.\9\ Small state member banks 
and small covered savings and loan holding companies would be affected. 
However, the Board does not believe that the proposed rule

[[Page 75761]]

would have a significant impact on small banking organizations because 
the Board considers the proposed rule to clarify the common equity tier 
1 capital qualification criteria, and provide specific guidance on the 
application of the qualification criteria to entities subject to 
Regulation Q.
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    \9\ See 12 CFR 217.1.
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    Therefore, there are no significant alternatives to the proposed 
rule that would have less economic impact on small bank holding 
companies. As discussed above, the projected reporting, recordkeeping, 
and other compliance requirements of the proposed rule are expected to 
be minimal. The Board does not believe that the proposed rule 
duplicates, overlaps, or conflicts with any other Federal rules. In 
light of the foregoing, the Board does not believe that the proposed 
rule, if adopted in final form, would have a significant economic 
impact on a substantial number of small entities. Nonetheless, the 
Board seeks comment on whether the proposed rule would impose undue 
burdens on, or have unintended consequences for, small organizations, 
and whether there are ways such potential burdens or consequences could 
be minimized in a manner consistent with the purpose of the proposed 
rule. A final regulatory flexibility analysis will be conducted after 
consideration of comments received during the public comment period.

C. Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires the Board to use 
plain language in all proposed and final rules published after January 
1, 2000. The Board has sought to present the proposed rule in a simple 
straightforward manner, and invite comment on the use of plain 
language. For example:
     Have the agencies organized the material to suit your 
needs? If not, how could they present the proposed rule more clearly?
     Are the requirements in the proposed rule clearly stated? 
If not, how could the proposed rule be more clearly stated?
     Do the regulations 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 regulation easier to 
understand? If so, what changes would achieve that?
     Is the section format adequate? If not, which of the 
sections should be changed and how?
     What other changes can the Board incorporate to make the 
regulation easier to understand?

List of Subjects in 12 CFR Part 217

    Administrative practice and procedure, Banks, Banking, Capital, 
Federal Reserve System, Holding companies, Reporting and recordkeeping 
requirements, Securities.

Board of Governors of the Federal Reserve System

12 CFR Chapter II

Authority and Issuance

    For the reasons set forth in the preamble, part 217 of chapter II 
of title 12 of the Code of Federal Regulations is proposed to be 
amended as follows:

PART 217--CAPITAL ADEQUACY OF BANK HOLDING COMPANIES, SAVINGS AND 
LOAN HOLDING COMPANIES AND STATE MEMBER BANKS (REGULATION Q)

0
1. 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-l, 1831w, 1835, 1844(b), 1851, 3904, 
3906-3909, 4808, 5365, 5368, 5371.

0
2. Add subpart I to read as follows:
Subpart I--Application of Capital Rules
Sec.
217.501 The Board's Regulatory Capital Framework for Depository 
Institution Holding Companies Organized as Non-Stock Companies.
217.502 Application of the Board's Regulatory Capital Framework to 
Employee Stock Ownership Plans that are Depository Institution 
Holding Companies and Certain Trusts that are Savings and Loan 
Holding Companies.


Sec.  217.501  The Board's Regulatory Capital Framework for Depository 
Institution Holding Companies Organized as Non-Stock Companies.

    (a) Applicability. (1) This rule applies to all depository 
institution holding companies that are not organized in corporate form 
and are subject to the Board's regulatory capital rules (Regulation Q, 
12 CFR part 217).\30\
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    \30\ See 12 CFR 217.1(c)(1) through (3).
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    (2) Notwithstanding Sec. Sec.  217.2 and 217.10, a bank holding 
company or covered savings and loan holding company that is not 
organized in corporate form and has issued capital instruments that do 
not qualify as common equity tier 1 capital under Sec.  217.20 because 
of the requirements set forth in this section may treat such capital 
instruments as common equity tier 1 capital until January 1, 2016.
    (b) Common equity tier 1 criteria applied to capital instruments 
issued by non-stock companies. (1) Subpart C of this part provides 
criteria for capital instruments to qualify as common equity tier 1 
capital. This section describes certain of these criteria and how the 
criteria apply to capital instruments issued by bank holding companies 
and certain savings and loan holding companies that are organized as 
legal entities other than stock corporations, such as limited liability 
companies (LLCs), partnerships, and similar structures.
    (2) Holding companies are organized using a variety of legal 
structures, including corporate forms, LLCs, partnerships, and similar 
structures.\31\ In the Board's experience, some depository institution 
holding companies that are organized in non-stock form issue multiple 
classes of capital instruments that allocate distributions of profit 
and loss differently among classes, which may affect the ability of 
those classes to qualify as common equity tier 1 capital.\32\
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    \31\ A stock corporation's common stock should satisfy the 
common equity tier 1 capital criteria so long as the common stock 
does not have unusual features, such as a limited duration.
    \32\ Notably, voting powers or other means of exercising control 
are not relevant for purposes of satisfying the common equity tier 1 
capital qualification criteria. Thus, the fact that a partner or 
member that controls a holding company as general partner or 
managing member is not material to this discussion.
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    (3) Common equity tier 1 capital is defined in section 217.20(b) of 
this part. To qualify as common equity tier 1 capital, capital 
instruments must satisfy a number of criteria. This section provides 
examples of the application of certain common equity tier 1 capital 
criteria that relate to the economic interests in the company 
represented by particular capital instruments.
    (c) Examples. The following examples show how the criteria for 
common equity tier 1 capital apply to particular partnership or LLC 
structures.\33\
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    \33\ Although the examples refer to specific types of legal 
entities for purposes of illustration, the substance of the 
Regulation Q criteria reflected in the examples applies to all types 
of legal entities.
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    (1) LLC with one class of membership interests. (i) An LLC issues 
one class of membership interests that provides that all holders of the 
interests bear losses and receive dividends proportionately to their 
levels of ownership.
    (ii) Provided that the other criteria are met, the membership 
interests would qualify as common equity tier 1 capital.
    (2) Partnership with limited and general partners. (i) A 
partnership has two classes of interests: General

[[Page 75762]]

partnership interests and limited partnership interests. The general 
partners and the limited partners bear losses and receive distributions 
proportionately to their capital contributions. In addition, the 
general partner has unlimited liability for the debts of the 
partnership.
    (ii) Provided that the other criteria are met, the general and 
limited partnership interests would qualify as common equity tier 1 
capital. The fact of unlimited liability of the general partner is not 
relevant to the common equity tier 1 capital qualification criteria, 
provided that the general partner and limited partners share losses 
equally to the extent of the assets of the partnership, and the general 
partner is liable after the assets of the partnership are exhausted. In 
this regard, the general partner's unlimited liability is similar to a 
guarantee provided by the general partner, rather than a feature of the 
partnership interest.
    (3) LLC with two classes of membership interests. (i) An LLC issues 
two types of membership interests, Class A and Class B, holders of 
which share proportionately in all losses and in the return of 
contributed capital. The holders of these membership interests also 
share proportionately in profit distributions up to the point where all 
holders receive a specific annual rate of return on capital 
contributions. To the extent that the company makes additional 
distributions, holders of Class B receive double their proportional 
share and holders of Class A receive the remainder of the distribution.
    (ii) Class A and Class B would qualify as common equity tier 1 
capital, provided that under all circumstances they share losses 
proportionately for as long as the company controls a depository 
institution, and they satisfy the other criteria. Although 
distributions to holders of the classes can become different, this can 
only occur in a profit situation, and the holders bear losses equally.
    (iii) The common equity tier 1 capital qualification criteria in 
Regulation Q do not require that holders of all classes of capital 
instruments that qualify as common equity tier 1 capital share equally 
in distributions of profits, provided that under all circumstances 
losses are shared proportionately.
    (4) Senior and junior classes of capital instruments. (i) An LLC 
issues two types of membership interests, Class A and Class B. Holders 
of Class A and Class B participate equally in operating distributions 
and have equal voting rights. However, in liquidation, holders of Class 
B interests must receive their entire amount of contributed capital in 
order for any distributions to be made to holders of Class A interests.
    (ii) Class B interests have a preference over Class A interests in 
liquidation and, therefore, would not qualify as common equity tier 1 
capital as they are not the most subordinated claim (criterion (i); 
Sec.  217.20(b)(1)(i)) and do not share losses proportionately 
(criterion (viii); Sec.  217.20(b)(1)(viii)).
    (A) If all other criteria are satisfied, Class A interests would 
qualify as common equity tier 1 capital.
    (B) Class B interests may qualify as additional tier 1 capital, or 
tier 2 capital, if the Class B interests meet the applicable 
qualification criteria.
    (5) Mandatory distributions. (i) A partnership agreement contains 
provisions that require distributions to holders of one or more classes 
of capital instruments on occurrence of particular events, such as upon 
specific dates or following a significant sale of assets, but not 
including final liquidating distributions.
    (ii) Classes of capital instruments that provide holders with 
rights to mandatory distributions would not qualify as common equity 
tier 1 capital (criterion (vi); Sec.  217.20(b)(1)(vi)). Companies must 
ensure that they have a sufficient amount of capital instruments that 
do not have such rights, and that meet the other criteria of common 
equity tier 1 capital, in order to meet the requirements of Regulation 
Q.
    (6) Payment waterfalls. (i) The terms of Class A and Class B 
interests include a payment ``waterfall'' that differentiates 
distribution rights between holders of Class A and Class B interests, 
such that the Class B interests bear a disproportionately high level of 
the first loss in liquidation. Unlike the example in paragraph (c)(3) 
of this section, the different participation rights apply to 
distributions in loss situations, including losses at liquidation.
    (ii) Because the Class A interests do not bear a proportional 
interest in the losses (criterion (ii); Sec.  217.20(b)(1)(ii)), they 
would not qualify as common equity tier 1 capital.
    (A) Companies with such structures may revise their capital 
structures in order to provide for a sufficiently large class of 
capital instruments that proportionally bear first losses in 
liquidation (i.e., the Class B interests in this example).
    (B) Alternatively, companies could address such issues by revising 
their capital structure to ensure that all classes of capital 
instruments that are intended to qualify as common equity tier 1 
capital share equally in losses in liquidation consistent with criteria 
(i), (ii), (vii), and (viii) (Sec.  217.20(b)(1)(i), (ii), (vii), and 
(viii)), even if each class of capital instruments has different rights 
to distributions of profits, as in Example 3.
    (7) Clawback features. (i) The terms of LLC membership interests 
provide that, under certain circumstances, holders of Class A interests 
must return a portion of earlier distributions, which are then 
distributed to holders of Class B interests (often called a 
``clawback'').
    (ii) If a class of capital instruments is advantaged by such a 
provision (i.e., Class B in this example), such that the advantaged 
class might not bear losses equally and pro rata in the event of 
liquidation with the class of capital instruments whose holders are 
required to return earlier distributions, the advantaged class would 
not qualify as common equity tier 1 capital.
    (A) Companies must ensure that the classes of capital instruments 
that are intended to qualify as common equity tier 1 capital would 
remain the most subordinated classes (sharing losses on a pro rata 
basis) in liquidation under all circumstances (criterion (i); Sec.  
217.20(b)(1)(i)).
    (B) Companies also may be able to satisfy the requirements of 
Regulation Q by revising the timing of distributions so that holders a 
class of capital instruments do not receive, and are not allocated, 
distributions that later may be subject to a clawback while the company 
controls or may control a depository institution.


Sec.  217.502  Application of the Board's Regulatory Capital Framework 
to Employee Stock Ownership Plans That are Depository Institution 
Holding Companies and Certain Trusts That are Savings and Loan Holding 
Companies.

    (a) Employee stock ownership plans. Notwithstanding Sec.  217.1(c), 
a bank holding company or covered savings and loan holding company that 
is an employee stock ownership plan is exempt from this part until the 
Board adopts regulations that directly relate to the application of 
capital regulations to employee stock ownership plans.
    (b) Personal or family trusts. Notwithstanding Sec.  217.1(c), a 
covered savings and loan holding company is exempt from this part if it 
is a personal or family trust and not a business trust until the Board 
adopts regulations that apply capital regulations to such a covered 
savings and loan holding company.


[[Page 75763]]


    By order of the Board of Governors of the Federal Reserve 
System, December 12, 2014.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2014-29561 Filed 12-18-14; 8:45 am]
BILLING CODE 6210-01-P