Bank Capital Plans and Stress Tests

Transcription

1 Approves Final Rule Amending Certain Aspects of Existing Capital Plan and Stress Test Rules SUMMARY Last Friday, the Board of Governors of the System approved a final rule (the Final Rule ) amending certain aspects of the existing capital plan (the Capital Plan Rule ) 1 and rules (the Stress Test Rules ) 2 applicable to bank holding companies with $50 billion or more in total consolidated assets and the company-run Stress Test Rules applicable to bank holding companies with more than $10 billion but less than $50 billion in total consolidated assets and savings and loan holding companies and state member banks with more than $10 billion in total consolidated assets. 3 The Capital Plan Rule is designed to enable the to assess the internal capital planning process of each bank holding company with total consolidated assets of $50 billion or more (a Large BHC ) and its ability to maintain sufficient capital to continue its operations under expected and stressful conditions. The Stress Test Rules require Large BHCs to conduct annual and mid-cycle company-run s. State member banks and savings and loan holding companies with total consolidated assets of more than $10 billion and bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion are subject to less stringent Stress Test Rules. The also conducts annual supervisory s of Large BHCs under its Comprehensive Capital Assessment and Review program ( CCAR ). While the Final Rule largely has been adopted as initially proposed by the in June 2014 (the Proposed Rule ), 4 in response to public comment, 5 the Final Rule contains a number of notable revisions and clarifications, such as: Alignment between capital plans and actual capital issuances and distributions: As under the Proposed Rule, Large BHCs generally will be required to cap quarterly capital distributions if the amount of actual capital raised for a particular quarter is less than as indicated in its capital plan. New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney

2 However, the Final Rule makes several important adjustments to this requirement as compared to the Proposed Rule, including: the net distribution limit does not apply to scheduled payments on instruments that qualify as additional tier 1 and tier 2 capital; the Final Rule essentially treats distributions for each category of capital instrument (that is, common equity tier 1, additional tier 1 and tier 2) on a stand-alone basis for purposes of the net distribution limit so that, for example, failure to raise sufficient common equity tier 1 as planned would not affect distributions related to additional tier 1 capital instruments; the Final Rule does not permit a bank to raise greater amounts of more loss-absorbing capital (for example, common equity tier 1) than planned and thereby avoid the quarterly net distribution limit with respect to failures to raise regulatory capital with relatively lower lossabsorbing characteristics (for example, additional tier 1 capital), although the Federal Reserve indicates a bank could seek a waiver from the in such circumstances; and the Final Rule measures issuances and distributions on a cumulative basis, thus providing Large BHCs with flexibility to credit excess issuances or lower distributions of capital in a given quarter to a later quarter, in each case, relative to the amounts included in the Large BHC s capital plan for a given class of regulatory capital instrument. Timing of disclosure by Large BHCs of their mid-cycle s: The Final Rule extends the time period during which a Large BHC may release the results of its mid-cycle company-run stress test. For the cycle beginning October 1, 2014, a Large BHC will have 30 days from the date it submits the results of its mid-cycle company-run to the (that is, for the cycle beginning October 1, 2014, from July 5 to August 4, and for subsequent cycles beginning with the cycle commencing January 1, 2016, from October 5 to November 4) to disclose these results publicly. Under the Proposed Rule, a Large BHC had only 15 days to disclose these results. Definition of BHC Stress Scenario : The Final Rule attempts to clarify that a BHC Stress Scenario should be both appropriately severe and relevant to the specific idiosyncratic risks of the particular Large BHC, rather than engineered solely to produce a more severe impact on projected pre-tax net income than the results of the Large BHC s under the s severely adverse scenario. Timeline for applicability of the Capital Plan Rule to U.S. Intermediate Holding Companies: The Final Rule clarifies that a bank holding company subsidiary of a foreign banking organization (an FBO ) designated as the FBO s U.S. intermediate holding company (its U.S. IHC ) must first reflect the effects of any transfers associated with the IHC rule (the IHC Rule ), 6 including any capital issuances or contributions planned in connection with the capitalization of the U.S. IHC, in the Large BHC s capital plan due by April 5, Submission of loss, revenue and expense estimation models to the : The Final Rule clarifies that a Large BHC must submit only an inventory and description of the models and methodologies used in the preparation of its stress scenario rather than the models themselves. The Final Rule will take effect on November 26, 2014, other than the amendment to the Capital Plan Rule establishing a limitation on net capital distributions, which will be effective on April 1, DISCUSSION HIGHLIGHTS The Final Rule amends the s Capital Plan Rule and supervisory and company-run Stress Test Rules applicable to, among other entities, Large BHCs. -2-

3 Important elements of the Final Rule include: A. TIMELINE FOR ANNUAL CAPITAL PLAN AND STRESS TEST CYCLES The Final Rule largely retains the timeline for annual capital plan and cycles for Large BHCs and their state member bank subsidiaries. The sole change is that a Large BHC will have 30 days from the date it submitted its mid-cycle company-run results to the to disclose these results publicly. Under the Proposed Rule, a Large BHC had only 15 days to disclose these results, and the additional time is intended to allow a Large BHC to focus on the design and testing of its stress test as well as the publication of meaningful results. The 30-day public disclosure period will run from July 5 to August 4 for the cycle beginning October 1, 2014 and from October 5 to November 4 for the cycle beginning January 1, The table below sets forth the relevant dates for actions in the annual capital plan and cycles for Large BHCs and state member banks that are subsidiaries of Large BHCs. KEY DATES OF THE REVISED TIMELINE FOR ANNUAL CAPITAL PLAN AND STRESS TEST CYCLES FOR LARGE BHCs AND STATE MEMBER BANKS THAT ARE SUBSIDIARIES OF LARGE BHCs Supervisory action Company-run action Capital plan action For the cycle beginning Oct. 1, 2014 (same as under current rules) For the cycle beginning January 1, 2016 and thereafter As-of date for financial data for capital plan and s September 30, 2014 December 31 of the preceding calendar year notifies a Large BHC and/or its state member bank subsidiary that it will require the institution(s) to use one or more additional scenarios publishes scenarios for upcoming annual cycle communicates description of any additional components or scenarios to institution(s) Submission date for the results of the annual company-run Submission date for a Large BHC s capital plan By September 30, 2014 By November 15, 2014 By December 31 of the preceding calendar year By February 15 By December 1, 2014 By March 1 By January 5, 2015 By April 5-3-

4 Supervisory action Company-run action Capital plan action For the cycle beginning Oct. 1, 2014 (same as under current rules) For the cycle beginning January 1, 2016 and thereafter publishes summary results of a Large BHC s supervisory Disclosure date for summary results of the annual company-run responds to a Large BHC s capital plan and publicly discloses the results By March 31, 2015 By June 30 notifies a Large BHC that it will require the company to use one or more additional scenario(s) in the mid-cycle communicates description of any additional components or scenarios to a Large BHC for the midcycle By March 31, 2015 By June 30 By June 1, 2015 By September 1 Submission date for the results of a Large BHC s midcycle By July 5, 2015 By October 5 Disclosure date for results of a Large BHC s mid-cycle July 5 July 20, 2015 (revised to July 5 August 4 in the Final Rule) October 5 October 20 (revised to October 5 November 4 in the Final Rule B. ALIGNMENT BETWEEN CAPITAL PLANS AND ACTUAL CAPITAL ISSUANCES AND DISTRIBUTIONS Under the Capital Plan Rule and CCAR, when reviewing a Large BHC s capital plan, the considers the description of all planned capital actions for each quarter of a planning horizon, including both capital issuances and capital distributions, and relies on these descriptions of the planned capital actions as a basis for its objection or non-objection to a capital plan. 7 The Final Rule, as compared to the Proposed Rule, enhances the flexibility of Large BHCs to make capital distributions to the extent the Large BHC did not execute planned capital issuances during a given quarter of the capital plan cycle. Under the Proposed Rule, if a Large BHC were to issue less capital than the amount it projected in its capital plan for a given quarter, the Large BHC would have been required to address that shortfall by reducing capital distributions (that is, by reducing dividends or stock repurchases) on instruments with greater or equal ability to absorb losses (the Quarterly Net Distribution Limit ). The proposal would have provided an exception to the Quarterly Net Distribution Limit where a -4-

5 Large BHC had contemplated a capital issuance to support a merger or acquisition but did not consummate such merger or acquisition. The Final Rule adopts the requirement that a Large BHC reduce its distributions to the extent it does not execute planned capital issuances; however, the Final Rule incorporates several significant changes to the mechanics as originally proposed: First, the Final Rule does not require a Large BHC to reduce its scheduled payments on noncommon equity instruments that qualify as additional tier 1 and tier 2 capital instruments if it does not issue additional tier 1 and tier 2 capital instruments included in its capital plan. Second, the Final Rule does not require a Large BHC to reduce distributions on instruments with greater ability to absorb losses (for example, common equity tier 1) in the event that a bank holding company does not execute a planned issuance of a capital instrument with less ability to absorb losses (for example, non-common equity instruments that qualify as additional tier 1 or tier 2 capital instruments), if it had no planned redemptions or repurchases of additional tier 1 or tier 2 capital instruments, respectively, in that quarter. More specifically, the Final Rule essentially treats distributions for each category of capital instrument on a stand-alone basis for purposes of the Quarterly Net Distribution Limit. For example, [i]f the bank holding company raises a smaller dollar amount of common equity tier 1 capital..., the bank holding company must reduce its capital distributions relating to common equity tier 1 capital [emphasis added] such that the dollar amount of the bank holding company s capital distributions, net of the dollar amount of its capital raises... relating to common equity tier 1 capital is no greater than the dollar amount of net distributions relating to common equity tier 1 capital included in its capital plan In other words, failure to raise sufficient common equity tier 1 as planned would not affect distributions related to additional tier 1 instruments. In addition, the Final Rule does not permit a covered company to raise greater amounts of more loss-absorbing capital (for example, common equity Tier 1) than planned and thereby avoid the Quarterly Net Distribution Limit with respect to failures to raise regulatory capital with lower loss-absorbing characteristics (for example, additional Tier 1 capital), although the Federal Reserve indicates a bank could seek a waiver from the in such circumstances. Similarly, raising more lower quality capital than planned cannot be used as a substitute for failure to raise the planned amount of relatively higher loss-absorbing capital. Third, the Final Rule measures issuances and distributions beginning with the third quarter of the capital planning horizon on a cumulative basis (the Cumulative Net Distribution Limit ), thus providing Large BHCs with flexibility to credit excess issuances or lower distributions of capital in a given quarter to a later quarter, in each case, relative to the amounts included in the Large BHC s capital plan for a given class of regulatory capital instrument. Fourth, in response to comments received to the Proposed Rule, the Cumulative Net Distribution Limit does not apply to the extent that the Large BHC raises a smaller dollar amount of capital due to employee-driven issuance activities or issuances related to mergers and acquisitions for which the purchase price is lower than the price projected in a Large BHC s capital plan. Fifth, under the Final Rule, the Cumulative Net Distribution Limit does not apply to a capital distribution to the extent that the excess net distribution is de minimis (that is, the excess net distributions are less than one percent of the Large BHC s tier 1 capital, as reported on the Large BHC s first quarter FR Y-9C), and the Large BHC notifies the appropriate bank at least 15 calendar days in advance of any such capital distribution. The Final Rule permits Large BHCs to request a non-objection from the for planned distributions when market conditions or other circumstances have prevented the Large BHC from making planned issuances. To pursue this option, a Large BHC may be required to submit supporting -5-

6 information, including the Large BHC s forward-looking assessment of its capital adequacy under revised scenarios and supporting information. C. EMPHASIS ON ROBUST AND REALISTIC ASSUMPTIONS Under the Final Rule, as under the Proposed Rule, the may object to a Large BHC s capital plan in the following cycle, or require resubmission of its capital plan in the current cycle, if the assumptions and analysis underlying the Large BHC s capital plan, or the Large BHC s methodologies for reviewing the robustness of its capital adequacy process, are not reasonable or appropriate. The Federal Reserve generally expects that a Large BHC will undertake the capital actions included in its capital plan and be able to justify discrepancies between its planned and executed capital issuances. A Large BHC s consistent failure to do so may be indicative of shortcomings in its capital planning processes and may indicate that the assumptions and analysis underlying the Large BHC s capital plan, or the Large BHC s methodologies for reviewing the robustness of its capital adequacy process, are not reasonable or appropriate. Accordingly, a BHC s consistent failure to execute capital issuances in its capital plan may form the basis for objection if it is unable to explain the discrepancies between its planned and executed capital issuances. The Final Rule also emphasizes that a Large BHC is expected to project its distributions and issuances in a capital plan based on realistic assumptions about the future and in a manner broadly consistent with previous quarters. The Final Rule notes that Large BHCs have been varying the volume of capital distributions in their capital plans cycle-to-cycle to take advantage of quarters that are not subject to objection by the during a given capital plan cycle. The Final Rule acknowledges that there may be legitimate explanations for these variations, including market conditions, a Large BHC s profitability or changed risk conditions; however, the will monitor this behavior, and a Large BHC s inability to adequately explain changes in planned capital actions may be indicative of qualitative shortcomings in the Large BHC s capital planning processes. D. DEFINITION OF A BHC STRESS SCENARIO The Final Rule attempts to clarify the s expectations with respect to the design of a stress scenario for a Large BHC under the Capital Plan Rule (a BHC Stress Scenario ). The preamble to the Proposed Rule indicated that an appropriately tailored BHC Stress Scenario would likely result in an impact to projected pre-tax net income that is at least as severe as the results of the Large BHC s company-run under the s severely adverse scenario. Commenters expressed concern that this standard for the BHC Stress Scenario would encourage a Large BHC to design its BHC Stress Scenario with an eye toward the results of the s severely adverse scenario rather than on an evaluation of the Large BHC s idiosyncratic risks and would encourage the Large BHC to wait for the release of the s supervisory scenarios before starting the design of its stress scenario. In response, the Final Rule indicates that the BHC Stress Scenario designed by a Large BHC -6-

7 should be of a severity generally comparable to the usual severity in the s severely adverse scenario and that a Large BHC should develop a BHC Stress Scenario that is both appropriately severe and that is relevant to the specific vulnerabilities of its risk profile and operations. The Final Rule also states that the severity of a BHC Stress Scenario may be evaluated on factors in addition to the impact on projected net income, including the impact on projected comprehensive income. E. TIMELINE FOR APPLICABILITY OF THE CAPITAL PLAN RULE TO U.S. IHCs Under the IHC Rule, a foreign banking organization with U.S. non-branch assets of $50 billion or more is required to establish a U.S. IHC by July 1, The FBO may do so either by designating an existing bank holding company, designating an existing nonbank company or forming a new holding company as its U.S. IHC. The U.S. IHC is subject to enhanced prudential standards following the transition periods set forth in the IHC Rule. 1. Guidance for the 2015 and 2016 Capital Plan and Stress Test Cycles for U.S. Subsidiaries of FBOs In response to comments on the Proposed Rule, the Final Rule clarifies that an existing bank holding company subsidiary of an FBO that is designated by the FBO as the FBO s U.S. IHC will not be required to reflect the reorganization required by the IHC Rule in its capital plan and results for the 2015 capital planning cycle. For the 2016 capital planning cycle, the expects a bank holding company subsidiary of an FBO to reflect the effects of any transfers associated with the IHC Rule, including any capital issuances or contributions planned during the planning horizon that are related to the capitalization of the IHC, in the bank holding company s capital plan due by April 5, If a bank holding company that will be designated as the U.S. IHC elects to avail itself of this relief for the 2015 capital planning cycle, the expects that, generally, the U.S. bank holding company will have a capital plan that includes planned capital distributions (net of capital issuance) that are no greater than those included in the bank holding company s capital plan for the previous cycle, or, if the bank holding company has not previously submitted a capital plan, the amount of net capital distributions actually made in the previous year. 2. Guidance for the 2017 Cycle The Final Rule also clarifies that for the 2017 capital planning cycle, the s assessment of the capital plan of a U.S. IHC (but not a U.S. IHC that was a bank holding company subject to CCAR prior to its designation as a U.S. IHC) will not be based on supervisory estimates conducted under CCAR. Instead, the Final Rule indicates that the intends to conduct a more limited quantitative assessment of the U.S. IHC s capital plan based on the company s own stress scenario and a qualitative assessment of its capital planning practices and supporting practices similar in scope to the CapPR program, which was first used for Large BHCs that had not previously participated in the Federal Reserve s Supervisory Capital Assessment Program CCAR s predecessor. -7-

8 The expects that U.S. IHCs will become subject to the full CCAR process beginning with the 2018 cycle. 3. Joint Submissions of Capital Plans The Final Rule clarifies that U.S. IHCs and their subsidiary bank holding companies may jointly submit their capital plans during a cycle when they are both subject to the Capital Plan Rule. In these submissions, the U.S. IHC should explain how certain aspects of the capital plan for the U.S. IHC build upon the bank holding company s capital plan. The intends to provide additional guidance on joint submissions in the future. F. SUBMISSION OF LOSS, REVENUE AND EXPENSE ESTIMATION MODELS TO THE FEDERAL RESERVE The Proposed Rule would have required a bank holding company to be capable of providing to the the loss, revenue, and expense estimation models used by the bank holding company for stress scenario analysis, including documentation supporting each model s development and validation. In response to comments regarding the logistical difficulties of delivering these models to the, the Final Rule clarifies that Large BHCs will be required to deliver only an inventory and description of models and methodologies, not the models themselves. The will provide further guidance regarding the documentation required to be submitted in support of a capital plan. G. TRANSITION PROVISIONS IN THE REVISED STRESS TEST RULES FOR A NONBANK FINANCIAL COMPANY THAT BECOMES SUBJECT TO FEDERAL RESERVE SUPERVISION (A SIFI ) The Final Rule retains the Proposed Rule s transition provisions in the Capital Plan and Stress Test Rules for entities that become Large BHCs. However, unlike the Proposed Rule, the Final Rule provides the with flexibility to determine how, and under what transition schedule, the and capital planning standards should be applied to a SIFI following its designation as a SIFI. Under the Proposed Rule, a nonbank financial company that was designated as a SIFI before March 31 of a given year would become subject to and capital planning standards on January 1 of the following year, unless the time was accelerated or extended by the in writing. In response to comments to the Proposed Rule encouraging the to ensure that insurance-industry SIFIs have sufficient time to transition into the and capital planning regimes and consider their risk profile and level of risk diversification, the has declined to establish the timing for the application of the Stress Test Rules to SIFIs in the Final Rule. Instead, following the designation of a SIFI, the will consider the business model, capital structure and risk profile of the SIFI to determine how, and under what transition schedule, the and capital planning standards should be applied to that SIFI. * * * Copyright Sullivan & Cromwell LLP

9 ENDNOTES C.F.R For a discussion of the Capital Plan Rule and related requirements for Large BHCs, see our memorandum to clients, Bank Capital Plans: Board Issues Final Rule Regarding Capital Plan and Formal Stress Test Requirements for Certain Large Bank Holding Companies (Nov. 29, 2011), available at Plans /. For a discussion of the requirements and expectations for capital planning for Large BHCs, see our memoranda to clients, Bank Capital Plans: Board Issues Guidance Outlining Supervisory Expectations for Capital Planning at Large Bank Holding Companies and Bank Capital Plans (Sept. 11, 2013), available at Capital-Plans and : Issues Instructions and Guidance for the 2014 Comprehensive Capital Analysis and Review Program (Nov. 6, 2013), available at 12 C.F.R. 252, Subparts B, E and F. For a discussion of the Stress Test Rules of the Federal Reserve, the Federal Deposit Insurance Corporation and the Office of the Comptroller of the Currency (together, the Agencies ) and certain actions taken by the Agencies following approval of their final Stress Test Rules, see our memoranda to clients, Stress Test Rules: Federal Banking Agencies Publish Final Stress Test Rules on Supervisory and Company-Run Stress Test Requirements Imposed by Dodd-Frank (Oct. 26, 2012), available at and Dodd-Frank Stress Tests: Federal Banking Agencies Propose Company-Run Stress Test Data Reporting Templates and Related Documentation for Financial Institutions with Over $10 Billion but Less Than $50 Billion in Assets (Apr. 19, 2013), available at The, Amendments to the Capital Plan and Stress Test Rules, 79 C.F.R (Oct. 17, 2014). The Proposed Rule was published by the in the Federal Register in July The, Amendments to the Capital Plan and Stress Test Rules, 79 Fed. Reg (July 1, 2014). For additional information regarding the Proposed Rule, see our memorandum to clients titled, : Proposes New Submission Deadlines and Other Revisions to Its Capital Plan Rule; Federal Banking Agencies Propose New Submission Deadlines for Dodd-Frank Act Company-Run Stress Tests (June 30, 2014), available at Bank_Capital_Plans_and_Stress_Tests_6_30_14.pdf. The Agencies received 18 comment letters. For example, see The Clearing House Association L.L.C., Comment Letter Regarding Amendments to the Capital Plan and Stress Test Rules (Aug. 11, 2014). The, Enhanced Prudential Standards for Bank Holding Companies and Foreign Banking Organizations, 79 FR (Mar. 27, 2014). Concurrently with the release of the Final Rule, the released updated guidance regarding its application of CCAR during the 2015 CCAR Cycle. See Comprehensive Capital Analysis and Review 2015: Summary Instructions and Guidance (Oct. 2014), available at For additional information regarding the updated CCAR guidance, see our forthcoming memorandum to clients titled, : Issues Instructions and Guidance for the 2015 Comprehensive Capital Analysis and Review Program. The Final Rule at

10 ABOUT SULLIVAN & CROMWELL LLP Sullivan & Cromwell LLP is a global law firm that advises on major domestic and cross-border M&A, finance, corporate and real estate transactions, significant litigation and corporate investigations, and complex restructuring, regulatory, tax and estate planning matters. Founded in 1879, Sullivan & Cromwell LLP has more than 800 lawyers on four continents, with four offices in the United States, including its headquarters in New York, three offices in Europe, two in Australia and three in Asia. CONTACTING SULLIVAN & CROMWELL LLP This publication is provided by Sullivan & Cromwell LLP as a service to clients and colleagues. The information contained in this publication should not be construed as legal advice. Questions regarding the matters discussed in this publication may be directed to any of our lawyers listed below, or to any other Sullivan & Cromwell LLP lawyer with whom you have consulted in the past on similar matters. If you have not received this publication directly from us, you may obtain a copy of any past or future related publications from Nathalie-Claire Chiavaroli ( chiavarolin@sullcrom.com) in our New York office. CONTACTS New York Whitney A. Chatterjee chatterjeew@sullcrom.com H. Rodgin Cohen cohenhr@sullcrom.com Elizabeth T. Davy davye@sullcrom.com Mitchell S. Eitel eitelm@sullcrom.com Michael T. Escue escuem@sullcrom.com Jared M. Fishman fishmanj@sullcrom.com C. Andrew Gerlach gerlacha@sullcrom.com Andrew R. Gladin gladina@sullcrom.com Wendy M. Goldberg goldbergw@sullcrom.com Erik D. Lindauer lindauere@sullcrom.com Jiang Liu liujia@sullcrom.com Mark J. Menting mentingm@sullcrom.com Camille L. Orme ormec@sullcrom.com Rebecca J. Simmons simmonsr@sullcrom.com Donald J. Toumey toumeyd@sullcrom.com Marc Trevino trevinom@sullcrom.com Mark J. Welshimer welshimerm@sullcrom.com Michael M. Wiseman wisemanm@sullcrom.com -10-

11 Washington, D.C. Eric J. Kadel Jr William F. Kroener III J. Virgil Mattingly Andrea R. Tokheim Samuel R. Woodall III Los Angeles Patrick S. Brown London Mark J. Welshimer Tokyo Keiji Hatano DC_LAN