[Federal Register Volume 85, Number 55 (Friday, March 20, 2020)]
[Rules and Regulations]
[Pages 15909-15916]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06051]



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 Rules and Regulations
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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  Federal Register / Vol. 85, No. 55 / Friday, March 20, 2020 / Rules 
and Regulations  

[[Page 15909]]



DEPARTMENT OF THE TREASURY

Office of the Comptroller of the Currency

12 CFR Part 3

[Docket No. OCC-2020-0009]
RIN 1557-AE81
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FEDERAL RESERVE SYSTEM

12 CFR Part 217

[Regulations Q; Docket No. R-1703]
RIN 7100-AF77
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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 324

RIN 3064-AF40


Regulatory Capital Rule: Eligible Retained Income

AGENCY: Board of Governors of the Federal Reserve System (Board), 
Office of the Comptroller of the Currency (OCC), and Federal Deposit 
Insurance Corporation (FDIC).

ACTION: Interim final rule with request for comments.

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SUMMARY: In light of recent disruptions in economic conditions caused 
by the coronavirus disease 2019 (COVID-19) and current strains in U.S. 
financial markets, the Board, OCC and FDIC (together, the agencies) are 
issuing an interim final rule that revises the definition of eligible 
retained income for all depository institutions, bank holding 
companies, and savings and loan holding companies subject to the 
agencies' capital rule (together, a banking organization or banking 
organizations). The revised definition of eligible retained income will 
make any automatic limitations on capital distributions that could 
apply under the agencies' capital rules more gradual.

DATES: The interim final rule is effective March 20, 2020. Comments on 
the interim final rule must be received no later than May 4, 2020.

ADDRESSES: 
    OCC: Commenters are encouraged to submit comments through the 
Federal eRulemaking Portal or email, if possible. Please use the title 
``Regulatory Capital Rule: Eligible Retained Income'' to facilitate the 
organization and distribution of the comments. You may submit comments 
by any of the following methods:
     Federal eRulemaking Portal--Regulations.gov Classic or 
Regulations.gov Beta: Regulations.gov Classic: Go to https://www.regulations.gov/. Enter ``Docket ID OCC-2020-0009'' in the Search 
Box and click ``Search.'' Click on ``Comment Now'' to submit public 
comments. For help with submitting effective comments please click on 
``View Commenter's Checklist.'' Click on the ``Help'' tab on the 
Regulations.gov home page to get information on using Regulations.gov, 
including instructions for submitting public comments. Regulations.gov 
Beta: Go to https://beta.regulations.gov/ or click ``Visit New 
Regulations.gov Site'' from the Regulations.gov Classic homepage. Enter 
``Docket ID OCC-2020-0009'' 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 
``Commenter's Checklist.'' For assistance with the Regulations.gov Beta 
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].
     Email: [email protected].
     Mail: Chief Counsel's Office, Attention: 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.
     Fax: (571) 465-4326.
    Instructions: You must include ``OCC'' as the agency name and 
``Docket ID OCC-2020-0009'' 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 rulemaking action by any of the following methods:
     Viewing Comments Electronically--Regulations.gov Classic 
or Regulations.gov Beta:
Regulations.gov Classic: Go to https://www.regulations.gov/. Enter 
``Docket ID OCC-2020-0009'' in the Search box and click ``Search.'' 
Click on ``Open Docket Folder'' on the right side of the screen. 
Comments and supporting materials can be viewed and filtered by 
clicking on ``View all documents and comments in this docket'' and then 
using the filtering tools on the left side of the screen. Click on the 
``Help'' tab on the Regulations.gov home page to get information on 
using Regulations.gov. The docket may be viewed after the close of the 
comment period in the same manner as during the comment period.
Regulations.gov Beta: Go to https://beta.regulations.gov/ or click 
``Visit New Regulations.gov Site'' from the Regulations.gov Classic 
homepage. Enter ``Docket ID OCC-2020-0009'' in the Search Box and click 
``Search.'' Click on the ``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 screen or the ``Refine Results'' options on 
the left side of the screen.'' For assistance with the Regulations.gov 
Beta site, please call (877) 378-5457 (toll free) or (703) 454-

[[Page 15910]]

9859 Monday-Friday, 9am-5pm 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.
     Viewing Comments Personally: You may personally inspect 
comments at the OCC, 400 7th Street SW, Washington, DC 20219. For 
security reasons, the OCC requires that visitors make an appointment to 
inspect comments. You may do so by calling (202) 649-6700 or, for 
persons who are deaf or hearing impaired, TTY, (202) 649-5597. Upon 
arrival, visitors will be required to present valid government-issued 
photo identification and submit to security screening in order to 
inspect comments.
    Board: You may submit comments, identified by Docket No. R-1703; 
RIN 7100-AF77, by any of the following methods:
     Agency website: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Email: [email protected]. Include docket 
and RIN numbers 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 will be made available on the Board's website at 
http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons or to remove 
personally identifiable information at the commenter's request. 
Accordingly, comments will not be edited to remove any identifying or 
contact information. Public comments may also be viewed electronically 
or in paper in Room 146, 1709 New York Avenue NW, Washington, DC 20006, 
between 9:00 a.m. and 5:00 p.m. on weekdays. For security reasons, the 
Board requires that visitors make an appointment to inspect comments. 
You may do so by calling (202) 452-3684.
    FDIC: You may submit comments, identified by RIN [3064-AF40], by 
any of the following methods:
     Agency website: http://www.fdic.gov/regulations/laws/federal. Follow instructions for submitting comments on the Agency 
website.
     Email: [email protected]. Include ``RIN 3064-AF40'' on the 
subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments/RIN 3064-AF40, Federal Deposit Insurance Corporation, 550 17th 
Street NW, Washington, DC 20429.
     Hand Delivery/Courier: Comments may be hand delivered to 
the guard station at the rear of the 550 17th Street Building (located 
on F Street) on business days between 7 a.m. and 5 p.m. All comments 
received must include the agency name (FDIC) and RIN 3064-AF40 and will 
be posted without change to http://www.fdic.gov/regulations/laws/federal, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: OCC: Margot Schwadron, Director, or 
Benjamin Pegg, Risk Expert, Capital and Regulatory Policy, (202) 649-
6370; or Carl Kaminski, Special Counsel, or Kevin Korzeniewski, 
Counsel, Chief Counsel's Office, (202) 649-5490, for persons who are 
deaf or hearing impaired, TTY, (202) 649-5597, Office of the 
Comptroller of the Currency, 400 7th Street SW, Washington, DC 20219.
    Board: Anna Lee Hewko, Associate Director, (202) 530-6360, 
Constance Horsley, Deputy Associate Director, (202) 452-5239, Juan 
Climent, Manager, (202) 460 2180, Matthew McQueeney, Senior Financial 
Institution Policy Analyst II, (202) 452-2942, Division of Supervision 
and Regulation; Benjamin McDonough, Assistant General Counsel, (202) 
452-2036, Asad Kudiya, Senior Counsel, (202) 475-6358, or Mary Watkins, 
Senior Attorney, (202) 452-3722, Legal Division, 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.
    FDIC: Bobby R. Bean, Associate Director, [email protected]; 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; or Michael Phillips, Counsel, [email protected]; Catherine 
Wood, Counsel, [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. The Interim Final Rule
III. Impact Assessment
IV. Administrative Law Matters
    A. Effective Date/Request for Comment
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Riegle Community Development and Regulatory Improvement Act 
of 1994
    E. Use of Plain Language
    F. Unfunded Mandates

I. Background

    Under the capital rule, a banking organization \1\ must maintain a 
minimum amount of regulatory capital.\2\ In addition, a banking 
organization must maintain a buffer of regulatory capital above its 
minimum capital requirements to avoid restrictions on capital 
distributions and discretionary bonus payments.\3\ The agencies 
established the buffer requirements to encourage better capital 
conservation by banking organizations and to enhance the resilience of 
the banking system during stress periods.\4\ In particular, the 
agencies intend for the buffer requirements to limit the ability of 
banking organizations to distribute capital in the form of dividends 
and discretionary bonus payments and therefore strengthen the ability 
of banking organizations to continue lending and conducting other 
financial intermediation activities during stress periods. The agencies 
are concerned, however, that the buffer requirements do not limit 
capital distributions in the gradual manner intended when the buffer 
requirements were developed. Rather, the limitations on capital 
distributions could be sudden and severe if such banking organizations 
were to experience even a modest reduction in their capital ratios, 
undermining the ability of banking organizations to use their capital 
buffers.
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    \1\ Banking organizations subject to the capital rule include 
national banks, state member banks, state nonmember banks, savings 
associations, and top-tier bank holding companies and savings and 
loan holding companies domiciled in the United States not subject to 
the Board's Small Bank Holding Company Policy Statement (12 CFR part 
225, appendix C), but exclude certain savings and loan holding 
companies that are substantially engaged in insurance underwriting 
or commercial activities or that are estate trusts, and bank holding 
companies and savings and loan holding companies that are employee 
stock ownership plans.
    \2\ See 12 CFR 3.10 (OCC), 12 CFR 217.10 (Board), and 12 CFR 
324.10 (FDIC).
    \3\ See 12 CFR 3.11 (OCC); 12 CFR 217.11 (Board); 12 CFR 324.11 
(FDIC).
    \4\ 78 FR 62018, 62034 (Oct. 11, 2013).
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    The agencies are adopting an interim final rule that revises the 
definition of eligible retained income. The interim final rule also 
addresses the impact of recent dislocations in the U.S. economy as a 
result of COVID-19. By modifying the definition of eligible retained 
income and thereby allowing banking organizations to more freely use 
their

[[Page 15911]]

capital buffers, this interim final rule should help to promote lending 
activity and other financial intermediation activities by banking 
organizations and avoid compounding negative impacts on the financial 
markets.\5\
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    \5\ The interim final rule also would apply to the U.S. 
intermediate holding companies of foreign banking organizations 
required to be established or designated under 12 CFR 252.153.
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    During this stress period, the agencies encourage banking 
organizations to make prudent decisions regarding capital 
distributions. In addition, this interim final rule does not make 
changes to any other rule or regulation that may limit capital 
distributions or discretionary bonus payments. For instance, under the 
prompt corrective action framework, an insured depository institution 
that becomes less than adequately capitalized will be subject to 
dividend restrictions.\6\
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    \6\ 12 CFR 6.6 (OCC); 12 CFR 208.40 (Board); 12 CFR 324.405 
(FDIC).
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    In addition, S-corporation banks do not pay Federal income taxes. 
Income and losses are attributed to shareholders, potentially 
increasing their personal tax liability when the S-corporation has 
income and potentially reducing their personal tax liability if the S-
corporation has losses. In a situation where the S-corporation has 
income but does not pay dividends, its shareholders are responsible for 
meeting the increased tax liability from their own resources. A 
situation in which S-corporation shareholders' dividends would be 
insufficient to pay their share of taxes on the banks' income because 
of the capital conservation buffer is most likely to occur when the 
bank is adequately capitalized but one or more of its risk-based 
capital ratios breach the capital conservation buffer requirements.\7\ 
The revised definition of eligible retained income would assist in the 
ability of S-corporation banks to provide dividends to shareholders in 
order to meet their pass-through tax liabilities.
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    \7\ FDIC, FIL-40-2014 (July 21, 2014).
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II. The Interim Final Rule

    The capital rule requires a banking organization to maintain 
minimum risk-based capital and leverage ratios.\8\ The capital rule 
also requires a banking organization to maintain certain buffers above 
its risk-based capital and leverage ratios, as applicable, to avoid 
increasingly stringent restrictions on capital distributions and 
discretionary bonus payments.\9\ All banking organizations are 
currently subject to a fixed capital conservation buffer equal to 2.5 
percent of risk-weighted assets. Banking organizations subject to 
Category I, II, and III standards also are subject to a countercyclical 
capital buffer requirement, and the largest and most systemically 
important banking organizations--global systemically important bank 
holding companies, or U.S. GSIBs--are subject to an additional capital 
buffer based on a measure of their systemic risk, the GSIB 
surcharge.\10\ In addition, a minimum supplementary leverage ratio of 3 
percent applies to banking organizations subject to Category I, II, and 
III standards. U.S. GSIBs also are subject to enhanced supplementary 
leverage ratio standards. U.S. GSIB bank holding companies must hold a 
leverage buffer of tier 1 capital to avoid limitations on distributions 
and discretionary bonus payments. The depository institution 
subsidiaries of U.S. GSIB holding companies generally must maintain a 
similarly higher supplementary leverage ratio to be considered well 
capitalized under the agencies' respective prompt corrective action 
frameworks. On March 4, 2020, the Board adopted a final rule that 
simplified the Board's capital framework for large banking 
organizations with the introduction of a stress capital buffer 
requirement (SCB final rule).\11\ Under the SCB final rule, a banking 
organization will receive a new stress capital buffer requirement on an 
annual basis, which replaces the static 2.5 percent capital 
conservation buffer requirement.
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    \8\ 12 CFR 3.10 (OCC); 12 CFR 217.10 (Board); 12 CFR 324.10 
(FDIC).
    \9\ See 12 CFR 3.11 (OCC); 12 CFR 217.11 (Board); 12 CFR 324.11 
(FDIC).
    \10\ In October 2019, the agencies finalized the tailoring rule, 
which more closely matches the regulations applicable to large 
banking organizations with their risk profile. The tailoring rule 
groups large U.S. and foreign banking organizations into four 
categories of standards (Category I through IV), with the most 
stringent standards applying to banking organizations subject to 
Category I standards. 84 FR 59230 (November 1, 2019).
    \11\ Amendments to the Regulatory Capital, Capital Plan, and 
Stress Test Rules, March 4, 2020, available at https://www.federalreserve.gov/newsevents/pressreleases/files/bcreg20200304a2.pdf. The SCB final rule applies to bank holding 
companies and U.S. intermediate holding companies of foreign banking 
organizations subject to the capital plan rule (covered holding 
company). 12 CFR 225.8.
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    Under the capital rule, if a banking organization's capital ratios 
fall within its buffer requirements, the maximum amount of capital 
distributions and discretionary bonus payments it can make is a 
function of its eligible retained income. For example, a banking 
organization in the bottom quartile of its capital conservation buffer 
may not make any capital distributions without prior approval from the 
Board, OCC, or FDIC, as applicable. The countercyclical capital buffer, 
the GSIB surcharge, and enhanced supplementary leverage ratio standards 
use the same definition of eligible retained income. As adopted, 
eligible retained income was defined as four quarters of net income, 
net of distributions and associated tax effects not already reflected 
in net income.
    Under a benign business environment when banking organizations have 
significant capital cushions above their capital requirements, some 
banking organizations decide to distribute all or nearly all of their 
net income. Because the measure of eligible retained income subtracts 
capital distributions made during the previous year, a period of sudden 
stress following a period of relatively benign conditions could result 
in very low or zero eligible retained income. Similarly, if a banking 
organization with eligible retained income that is very low or negative 
experiences an increase in its stress capital buffer requirement, 
because, for example, the banking organization's risk profile changed, 
then the banking organization's capital levels might not be sufficient 
to meet the stress capital buffer requirement. In either scenario, the 
banking organization could face sudden and severe distribution 
limitations even if its capital ratios only marginally fall below 
applicable buffer requirements.
    To address this concern, the SCB final rule revised the definition 
of eligible retained income for the stress loss portion of a covered 
holding company's capital conservation buffer requirement. Under the 
SCB final rule, if a covered holding company's capital ratios are above 
minimum requirements plus the fixed 2.5 percent portion of the capital 
conservation buffer plus any applicable GSIB surcharge and 
countercyclical capital buffer, the covered holding company's eligible 
retained income is defined as the average of its previous four quarters 
of net income. Under the SCB final rule, if a covered holding company's 
capital ratios are below its minimum requirements plus the fixed 2.5 
percent portion of the capital conservation buffer plus any applicable 
GSIB surcharge and countercyclical capital buffer, the covered holding 
company's eligible retained income is defined as net income for the 
four preceding calendar quarters, net of any distributions.
    Recent events have suddenly and significantly impacted financial 
markets. The spread of the COVID-19 virus has disrupted economic 
activity in many countries. In addition, financial markets have 
experienced significant volatility. The magnitude and

[[Page 15912]]

persistence of the overall effects on the economy remain highly 
uncertain. In light of these developments, banking organizations may 
realize a sudden, unanticipated drop in capital ratios. This could 
create a strong incentive for these banking organizations to limit 
their lending and other financial intermediation activities in order to 
avoid facing abrupt limitations on capital distributions. Thus, the 
current definition of eligible retained income, particularly in light 
of present market uncertainty, could serve as a deterrent for banking 
organizations to continue lending to creditworthy businesses and 
households.
    To better allow a banking organization to continue lending during 
times of stress, the agencies are issuing the interim final rule to 
revise the definition of eligible retained income to the greater of (1) 
a banking organization's net income for the four preceding calendar 
quarters, net of any distributions and associated tax effects not 
already reflected in net income, and (2) the average of a banking 
organization's net income over the preceding four quarters. This 
definition will apply with respect to all of a banking organization's 
buffer requirements, including the fixed 2.5 percent capital 
conservation buffer, and, if applicable, the countercyclical capital 
buffer, the GSIB surcharge, and enhanced supplementary leverage ratio 
standards. Once the SCB final rule is effective, this definition will 
also apply to all parts of a covered holding company's buffer 
requirements, including the stress loss portion of a covered holding 
company's capital conservation requirement. The agencies believe that 
having one definition for all banking organizations as described in 
this interim final rule simplifies the regulatory capital framework and 
ensures fairness across banking organizations of all sizes.
    This interim final rule is intended to strengthen the incentives 
for a banking organization to use its capital buffers as intended in 
adverse conditions and serve as a financial intermediary and source of 
credit to the economy. This revision would reduce the likelihood that a 
banking organization is suddenly subject to abrupt and restrictive 
distribution limitations in a scenario of lower than expected capital 
levels.
    Question 1: What would be the advantages and disadvantages of 
defining eligible retained income as the average of a banking 
organization's net income over the preceding four quarters instead of 
the greater of (i) a banking organization's net income for the four 
preceding calendar quarters, net of any distributions and associated 
tax effects not already reflected in net income, and (ii) the average 
of a banking organization's net income over the preceding four 
quarters?
    Question 2: What are the advantages and disadvantages of applying 
the revised definition of eligible retained income to depository 
institution subsidiaries? Would, and if so how would, applying the 
revised definition of eligible retained income to depository 
institutions be consistent with the purposes of the buffer requirements 
discussed above? How, if at all, do, the incentives for using a capital 
buffer differ for depository institutions compared to bank holding 
companies and savings and loan holding companies? Similarly, would, and 
if so how would, applying the revised definition of eligible retained 
income to U.S. intermediate holding companies be consistent with the 
purposes of the buffer requirements discussed above? How, if at all, do 
the incentives for using a capital buffer differ for U.S. intermediate 
holding companies?
    Question 3: Under what circumstances, if any, should a banking 
organization be restricted from making any capital distributions?

III. Impact Assessment

    In ordinary economic circumstances, many banking organizations will 
pay out a significant portion of their net income, and retain the rest 
to support growth. As banking organizations enter stress periods, the 
restrictions in the capital buffers limit distributions and help to 
preserve capital and support lending. However, if the limits to 
distributions are too restrictive, banking organizations can face a 
sharp increase in their distribution limitations when they enter the 
buffer due to stress. This may create an incentive for banking 
organizations to reduce lending or take other actions to avoid falling 
into the buffer. The revised definition of eligible net income in the 
interim final rule allows banking organizations to more gradually 
reduce distributions as they enter stress, and provides banking 
organizations with stronger incentives to continue to lend in such a 
scenario. On the other hand, by enabling banking organizations to 
gradually decrease capital distributions in stress (rather than 
mandating a sharp decrease), the rule could incrementally reduce the 
banking organization's loss-absorption capacity in stress.
    The definition of eligible retained income affects the 
distributions of banking organizations within their capital 
conservation or stress capital buffers. It does not have an impact on 
minimum capital requirements, per se. As such, the revised definition 
of eligible retained income in the interim final rule is not likely to 
have any noticeable effect on the capital requirements of banking 
organizations. Furthermore, banking organizations currently maintain 
robust capital levels, with only a small number of banking 
organizations having capital levels within the capital conservation 
buffer.

IV. Administrative Law Matters

A. Administrative Procedure Act

    The agencies are issuing the interim final rules without prior 
notice and the opportunity for public comment and the delayed effective 
date ordinarily prescribed by the Administrative Procedure Act 
(APA)).\12\ 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 therefor in the rules 
issued) that notice and public procedure thereon are impracticable, 
unnecessary, or contrary to the public interest.'' \13\
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    \12\ 5 U.S.C. 553.
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    The agencies believe that the public interest is best served by 
implementing the interim final rule immediately upon publication in the 
Federal Register. As discussed above, the spread of COVID-19 has 
disrupted economic activity in the United States. In addition, U.S. 
financial markets have featured extreme levels of volatility. The 
magnitude and persistence of COVID-19 on the economy remain uncertain. 
In light of the current market uncertainty, banking organizations may 
have a strong incentive to limit their lending activity in order to 
avoid facing abrupt restrictions on distributions. By making the 
automatic limitations on a banking organization's distributions more 
gradual as the banking organization's capital ratios decline, the 
interim final rule would allow banking organizations to focus on 
continuing to lend to creditworthy households and businesses rather 
than on managing their capital buffers and reducing the potential of 
exacerbating negative impacts on the financial markets. 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.\14\
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    \14\ 5 U.S.C. 553(b)(B); 553(d)(3).
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    The APA also requires a 30-day delayed effective date, except for 
(1) substantive rules which grant or recognize an exemption or relieve 
a restriction; (2) interpretative rules and

[[Page 15913]]

statements of policy; or (3) as otherwise provided by the agency for 
good cause.\15\ Because the rules relieve a restriction, the interim 
final rule is exempt from the APA's delayed effective date 
requirement.\16\
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    \15\ 5 U.S.C. 553(d).
    \16\ 5 U.S.C. 553(d)(1).
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    While the agencies believe that there is good cause to issue the 
rule without advance notice and comment and with an immediate effective 
date, the agencies are interested in the views of the public and 
requests comment on all aspects of the interim final rule.

B. Congressional Review Act

    For purposes of Congressional Review Act, the OMB makes a 
determination as to whether a final rule constitutes a ``major'' 
rule.\17\ If a rule is deemed a ``major rule'' by the Office of 
Management and Budget (OMB), the Congressional Review Act generally 
provides that the rule may not take effect until at least 60 days 
following its publication.\18\
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    \17\ 5 U.S.C. 801 et seq.
    \18\ 5 U.S.C. 801(a)(3).
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    The Congressional Review Act 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.\19\
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    \19\ 5 U.S.C. 804(2).
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    For the same reasons set forth above, the agencies are adopting the 
interim final rule without the delayed effective date generally 
prescribed under the Congressional Review Act. The delayed effective 
date required by the Congressional Review Act 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.\20\ In light of 
current market uncertainty, the agencies believe that delaying the 
effective date of the rule would be contrary to the public interest. In 
addition, as discussed above, the revised definition of eligible 
retained income in the interim final rule is not likely to have any 
significant effect on the capital requirements of banking 
organizations.
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    \20\ 5 U.S.C. 808.
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    As required by the Congressional Review Act, the agencies will 
submit the 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 (44 U.S.C. 3501-3521) (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. The interim final rule affects the 
agencies' current information collections for the Consolidated Reports 
of Condition and Income (Call Reports) (FFIEC 031, FFIEC 041, and FFIEC 
051). The OMB control numbers for the agencies are: OCC OMB No. 1557-
0081; Board OMB No. 7100-0036; and FDIC OMB No. 3064-0052. The Board 
has reviewed this interim final rule pursuant to authority delegated by 
the OMB.
    Although there is a substantive change to the actual calculation of 
retained income for purposes of the Call Reports, the change should be 
minimal and result in a zero net change in hourly burden under the 
agencies' information collections. Submissions will, however, be made 
by the agencies to OMB. The changes to the Call Reports and their 
related instructions will be addressed in a separate Federal Register 
notice. Also, the Board has temporarily revised the Consolidated 
Financial Statements for Holding Companies (FR Y-9; OMB No. 7100-0128) 
to reflect the changes made in this interim final rule. On June 15, 
1984, OMB delegated to the Board authority under the PRA to temporarily 
approve a revision to a collection of information without providing 
opportunity for public comment if the Board determines that a change in 
an existing collection must be instituted quickly and that public 
participation in the approval process would defeat the purpose of the 
collection or substantially interfere with the Board's ability to 
perform its statutory obligation.
    The Board's delegated authority requires that the Board, after 
temporarily approving a collection, solicit public comment on a 
proposal to extend the temporary collection for a period not to exceed 
three years. Therefore, the Board is inviting comment on a proposal to 
extend the FR Y-9 reports for three years, with revision. The Board 
invites public comment on the FR Y-9 reports, which are being reviewed 
under authority delegated by the OMB under the PRA. Comments are 
invited on the following:
    a. Whether the proposed collection of information is necessary for 
the proper performance of the Board's functions, including whether the 
information has practical utility;
    b. The accuracy of the Board's estimate of the burden of the 
proposed information collection, including the validity of the 
methodology and assumptions used;
    c. Ways to enhance the quality, utility, and clarity of the 
information to be collected;
    d. Ways to minimize the burden of information collection on 
respondents, including through the use of automated collection 
techniques or other forms of information technology; and
    e. Estimates of capital or startup costs and costs of operation, 
maintenance, and purchase of services to provide information.
    Comments must be submitted on or before May 19, 2020. At the end of 
the comment period, the comments and recommendations received will be 
analyzed to determine the extent to which the Board should modify the 
proposal.
    Adopted Revision, With Extension for Three Years, of the Following 
Information Collection:
    Report title: Financial Statements for Holding Companies.
    Agency form number: FR Y-9C; FR Y-9LP; FR Y-9SP; FR Y-9ES; FR Y-
9CS.
    OMB control number: 7100-0128.
    Effective date: December 31, 2020.
    Frequency: Quarterly, semiannually, and annually.
    Affected public: Businesses or other for-profit.
    Respondents: Bank holding companies (BHCs), savings and loan 
holding companies (SLHCs),\21\ securities holding companies (SHCs), and 
U.S. intermediate holding companies (IHCs) (collectively, holding 
companies (HCs)).
---------------------------------------------------------------------------

    \21\ A savings and loan holding company (SLHC) must file one or 
more of the FR Y-9 family of reports unless it is: (1) A 
grandfathered unitary SLHC with primarily commercial assets and 
thrifts that make up less than 5 percent of its consolidated assets; 
or (2) a SLHC that primarily holds insurance-related assets and does 
not otherwise submit financial reports with the SEC pursuant to 
section 13 or 15(d) of the Securities Exchange Act of 1934.
---------------------------------------------------------------------------

    Estimated number of respondents:
    FR Y-9C (non AA HCs) with less than $5 billion in total assets--
155,
    FR Y-9C (non AA HCs) with $5 billion or more in total assets--189,
    FR Y-9C (AA HCs)--19,
    FR Y-9LP--434,
    FR Y-9SP--3,960,
    FR Y-9ES--83,

[[Page 15914]]

    FR Y-9CS--236.
    Estimated average hours per response:

Reporting

    FR Y-9C (non AA HCs) with less than $5 billion in total assets--
40.48,
    FR Y-9C (non AA HCs) with $5 billion or more in total assets--
46.34,
    FR Y-9C (AA HCs)--47.59,
    FR Y-9LP--5.27,
    FR Y-9SP--5.40,
    FR Y-9ES--0.50,
    FR Y-9CS--0.50.
    Recordkeeping
    FR Y-9C (non AA HCs) with less than $5 billion in total assets--1,
    FR Y-9C (non AA HCs) with $5 billion or more in total assets--1,
    FR Y-9C (AA HCs)--1,
    FR Y-9LP--1,
    FR Y-9SP--0.50,
    FR Y-9ES--0.50,
    FR Y-9CS--0.50.
    Estimated annual burden hours:

Reporting

    FR Y-9C (non AA HCs) with less than $5 billion in total assets--
25,098,
    FR Y-9C (non AA HCs) with $5 billion or more in total assets--
35,033,
    FR Y-9C (AA HCs)--3,617,
    FR Y-9LP--9,149,
    FR Y-9SP--42,768,
    FR Y-9ES--42,
    FR Y-9CS--472.

Recordkeeping

    FR Y-9C (non AA HCs) with less than $5 billion in total assets--
620,
    FR Y-9C (non AA HCs) with $5 billion or more in total assets--756,
    FR Y-9C (AA HCs)--76,
    FR Y-9LP--1,736,
    FR Y-9SP--3,960,
    FR Y-9ES--42,
    FR Y-9CS--472.
    General description of report: The FR Y-9 family of reporting forms 
continues to be the primary source of financial data on holding 
companies that examiners rely on in the intervals between on-site 
inspections. Financial data from these reporting forms are used to 
detect emerging financial problems, to review performance and conduct 
pre-inspection analysis, to monitor and evaluate capital adequacy, to 
evaluate holding company mergers and acquisitions, and to analyze a 
holding company's overall financial condition to ensure the safety and 
soundness of its operations. The FR Y-9C, FR Y-9LP, and FR Y-9SP serve 
as standardized financial statements for the consolidated holding 
company. The Board requires HCs to provide standardized financial 
statements to fulfill the Board's statutory obligation to supervise 
these organizations. The FR Y-9ES is a financial statement for HCs that 
are Employee Stock Ownership Plans. The Board uses the FR Y-9CS (a 
free-form supplement) to collect additional information deemed to be 
critical and needed in an expedited manner. HCs file the FR Y-9C on a 
quarterly basis, the FR Y-9LP quarterly, the FR Y-9SP semiannually, the 
FR Y-9ES annually, and the FR Y-9CS on a schedule that is determined 
when this supplement is used.
    Legal authorization and confidentiality: The Board has the 
authority to impose the reporting and recordkeeping requirements 
associated with the FR Y-9 family of reports on BHCs pursuant to 
section 5 of the Bank Holding Company Act of 1956 (BHC Act) (12 U.S.C. 
1844); on SLHCs pursuant to section 10(b)(2) and (3) of the Home 
Owners' Loan Act (12 U.S.C. 1467a(b)(2) and (3)), as amended by 
sections 369(8) and 604(h)(2) of the Dodd-Frank Wall Street and 
Consumer Protection Act (Dodd-Frank Act); on U.S. IHCs pursuant to 
section 5 of the BHC Act (12 U.S.C 1844), as well as pursuant to 
sections 102(a)(1) and 165 of the Dodd-Frank Act (12 U.S.C. 511(a)(1) 
and 5365); and on securities holding companies pursuant to section 618 
of the Dodd-Frank Act (12 U.S.C. 1850a(c)(1)(A)). The obligation to 
submit the FR Y-9 series of reports, and the recordkeeping requirements 
set forth in the respective instructions to each report, are mandatory.
    With respect to the FR Y-9C report, Schedule HI's memoranda data 
item 7(g) ``FDIC deposit insurance assessments,'' Schedule HC-P's data 
item 7(a) ``Representation and warranty reserves for 1-4 family 
residential mortgage loans sold to U.S. government agencies and 
government sponsored agencies,'' and Schedule HC-P's data item 7(b) 
``Representation and warranty reserves for 1-4 family residential 
mortgage loans sold to other parties'' are considered confidential 
commercial and financial information. Such treatment is appropriate 
under exemption 4 of the Freedom of Information Act (FOIA) (5 U.S.C. 
552(b)(4)) because these data items reflect commercial and financial 
information that is both customarily and actually treated as private by 
the submitter, and which the Board has previously assured submitters 
will be treated as confidential. It also appears that disclosing these 
data items may reveal confidential examination and supervisory 
information, and in such instances, this information would also be 
withheld pursuant to exemption 8 of the FOIA (5 U.S.C. 552(b)(8)), 
which protects information related to the supervision or examination of 
a regulated financial institution.
    In addition, for both the FR Y-9C report and the FR Y-9SP report, 
Schedule HC's memorandum item 2.b., the name and email address of the 
external auditing firm's engagement partner, is considered confidential 
commercial information and protected by exemption 4 of the FOIA (5 
U.S.C. 552(b)(4)) if the identity of the engagement partner is treated 
as private information by HCs. The Board has assured respondents that 
this information will be treated as confidential since the collection 
of this data item was proposed in 2004.
    Aside from the data items described above, the remaining data items 
on the FR Y-9C report and the FR Y-9SP report are generally not 
accorded confidential treatment. The data items collected on FR Y-9LP, 
FR Y-9ES, and FR Y-9CS reports, are also generally not accorded 
confidential treatment. As provided in the Board's Rules Regarding 
Availability of Information (12 CFR part 261), however, a respondent 
may request confidential treatment for any data items the respondent 
believes should be withheld pursuant to a FOIA exemption. The Board 
will review any such request to determine if confidential treatment is 
appropriate, and will inform the respondent if the request for 
confidential treatment has been denied.
    To the extent the instructions to the FR Y-9C, FR Y-9LP, FR Y-9SP, 
and FR Y-9ES reports each respectively direct the financial institution 
to retain the workpapers and related materials used in preparation of 
each report, such material would only be obtained by the Board as part 
of the examination or supervision of the financial institution. 
Accordingly, such information is considered confidential pursuant to 
exemption 8 of the FOIA (5 U.S.C. 552(b)(8)). In addition, the 
workpapers and related materials may also be protected by exemption 4 
of the FOIA, to the extent such financial information is treated as 
confidential by the respondent (5 U.S.C. 552(b)(4)).
    Current actions: The Board has temporarily revised the instructions 
for the FR Y-9C to reflect the modification to the definition of 
eligible retained income contained in this interim final rule. 
Specifically, the Board has temporarily revised the instructions for 
the item capturing eligible retained income for HCs not subject to the 
capital plan rule on FR Y-9C, Schedule HC-R. The Board has determined 
that the revisions to the FR Y-9C must be instituted quickly and that 
public participation in the approval process would defeat the purpose 
of the

[[Page 15915]]

collection of information, as delaying the revisions would result in 
the collection of inaccurate information and would interfere with the 
Board's ability to perform its statutory duties. The Board also 
proposes to revise the instructions for a forthcoming item, which will 
be added to Schedule HC-R for the December 31, 2020 as-of date, that 
captures eligible retained income for HCs subject to the capital plan 
rule.
    The Board also proposes to extend the FR Y-9 reports for three 
years, with the revisions discussed above.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) \22\ requires an agency to 
consider whether the rules it proposes will have a significant economic 
impact on a substantial number of small entities.\23\ 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.
---------------------------------------------------------------------------

    \22\ 5 U.S.C. 601 et seq.
    \23\ 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.
---------------------------------------------------------------------------

    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

    Pursuant to section 302(a) of the Riegle Community Development and 
Regulatory Improvement Act (RCDRIA),\24\ in determining the effective 
date and administrative compliance requirements for new regulations 
that impose additional reporting, disclosure, or other requirements on 
insured depository institutions (IDIs), each Federal banking agency 
must consider, consistent with the principle of safety and soundness 
and the public interest, any administrative burdens that such 
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 
IDIs 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, with certain exceptions, including for good cause.\25\ 
For the reasons described above, the agencies find good cause exists 
under section 302 of RCDRIA to publish this interim final rule with an 
immediate effective date.
---------------------------------------------------------------------------

    \24\ 12 U.S.C. 4802(a).
    \25\ 12 U.S.C. 4802.
---------------------------------------------------------------------------

    As such, the final rule will be effective on March 20, 2020. 
Nevertheless, the agencies seek comment on RCDRIA.

F. Use of Plain Language

    Section 722 of the Gramm-Leach-Bliley Act \26\ requires the Federal 
banking agencies to use plain language in all proposed and final rules 
published after January 1, 2000. The agencies have sought to present 
the interim final rule in a simple and straightforward manner. The 
agencies invite comments on whether there are additional steps it could 
take to make the rule easier to understand. For example:
---------------------------------------------------------------------------

    \26\ 12 U.S.C. 4809.
---------------------------------------------------------------------------

     Have we organized the material to suit your needs? If not, 
how could this material be better organized?
     Are the requirements in the regulation clearly stated? If 
not, how could the regulation be more clearly stated?
     Does the regulation contain 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 to the format would make the regulation 
easier to understand?
    What else could we do to make the regulation easier to understand?

G. Unfunded Mandates

    As a general matter, the Unfunded Mandates Act of 1995 (UMRA), 2 
U.S.C. 1531 et seq., requires the preparation of a budgetary impact 
statement before promulgating a rule that includes a Federal mandate 
that may result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year. However, the UMRA does not apply to 
final rules for which a general notice of proposed rulemaking was not 
published. See 2 U.S.C. 1532(a). Therefore, because the OCC has found 
good cause to dispense with notice and comment for this interim final 
rule, the OCC has not prepared an economic analysis of the rule under 
the UMRA.

List of Subjects

12 CFR Part 3

    Administrative practice and procedure, Capital, Federal savings 
associations, National banks, Risk.

12 CFR Part 217

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

12 CFR Part 324

    Administrative practice and procedure, Banks, banking, Reporting 
and recordkeeping requirements, Savings associations.

Office of the Comptroller of the Currency

    For the reasons set out in the joint preamble, the OCC amends part 
3 of chapter I, title 12 of the CFR 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, and 5412(b)(2)(B).


0
2. Section 3.11 is amended by revising paragraph (a)(2)(i) to read as 
follows:


Sec.  3.11   Capital conservation buffer and countercyclical capital 
buffer amount.

    (a) * * *
    (2) * * *
    (i) Eligible retained income. The eligible retained income of a 
national bank or Federal savings association is the greater of:
    (A) The national bank's or Federal savings association's net 
income, calculated in accordance with the instructions to the Call 
Report, for the four calendar quarters preceding the current calendar 
quarter, net of any distributions and associated tax effects not 
already reflected in net income; and
    (B) The average of the national bank's or Federal savings 
association's net income, calculated in accordance with the 
instructions to the Call Report, for the four calendar quarters 
preceding the current calendar quarter.
* * * * *

[[Page 15916]]

BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM

    12 CFR Chapter II

Authority and Issuance

    For the reasons stated in the joint 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
3. 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, and 5371 note.


0
4. Section 217.11 is amended by revising paragraph (a)(2)(i) to read as 
follows:


Sec.  217.11   Capital conservation buffer, countercyclical capital 
buffer amount, and GSIB surcharge.

    (a) * * *
    (2) * * *
    (i) Eligible retained income. The eligible retained income of a 
Board-regulated institution is the greater of:
    (A) The Board-regulated institution's net income, calculated in 
accordance with the instructions to the FR Y-9C or Call Report, as 
applicable, for the four calendar quarters preceding the current 
calendar quarter, net of any distributions and associated tax effects 
not already reflected in net income; and
    (B) The average of the Board-regulated institution's net income, 
calculated in accordance with the instructions to the FR Y-9C or Call 
Report, as applicable, for the four calendar quarters preceding the 
current calendar quarter.
* * * * *

Federal Deposit Insurance Corporation

    12 CFR Chapter III

Authority and Issuance

    For the reasons set forth in the joint preamble, chapter III of 
title 12 of the Code of Federal Regulations is amended as follows:

PART 324--CAPITAL ADEQUACY OF FDIC-SUPERVISED INSTITUTIONS

0
5. 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).


0
6. Section 324.11 is amended by revising paragraph (a)(2)(i) to read as 
follows:


Sec.  324.11   Capital conservation buffer and countercyclical capital 
buffer amount.

    (a) * * *
    (2) * * *
    (i) Eligible retained income. The eligible retained income of an 
FDIC-supervised institution is the greater of:
    (A) The FDIC-supervised institution's net income, calculated in 
accordance with the instructions to the Call Report, for the four 
calendar quarters preceding the current calendar quarter, net of any 
distributions and associated tax effects not already reflected in net 
income; and
    (B) The average of the FDIC-supervised institution's net income, 
calculated in accordance with the instructions to Call Report, for the 
four calendar quarters preceding the current calendar quarter.
* * * * *

    Dated: March 17, 2020.
Morris R. Morgan,
First Deputy Comptroller, Comptroller of the Currency.

    By order of the Board of Governors of the Federal Reserve 
System.

Ann E. Misback,
Secretary of the Board.

Federal Deposit Insurance Corporation.

    By order of the Board of Directors.
    Dated at Washington, DC, on March 16, 2020.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 2020-06051 Filed 3-19-20; 8:45 am]
 BILLING CODE 6210-01-P