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Assessments, Mitigating the Deposit Insurance Assessment Effect of Participation in the Paycheck Protection Program (PPP), the PPP Liquidity Facility,…

Summary

The FDIC's final rule of June 26, 2020 (85 FR 38282) changes deposit insurance assessments so that banks taking part in the Paycheck Protection Program, the PPP Liquidity Facility or the Money Market Mutual Fund Liquidity Facility are not charged more for it. It removes the effect of PPP loans and PPPLF borrowings from the risk measures used to set an institution's assessment rate. It also removes the effect of PPP and MMLF participation on certain rate adjustments and provides an offset to an institution's assessment, noting that PPP loans are fully guaranteed by SBA.

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“Assessments, Mitigating the Deposit Insurance Assessment Effect of Participation in the Paycheck Protection Program (PPP), the PPP Liquidity Facility,….” Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/assessments-mitigating-the-deposit-insurance-assessment-effect-of-part-dc9e718a94/, SHA-256 9b50ee2dc2a16da8ea5a438baeddfb39ca38e781bef9f442d3c7b8e9ad106eeb.

Full text

                                          38282                Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          FEDERAL DEPOSIT INSURANCE                               assessments, is finalizing modifications               Act) and in recognition of the exigent
                                          CORPORATION                                             to mitigate the deposit insurance                      circumstances faced by small
                                                                                                  assessment effects of participation in the             businesses, Congress created the PPP.2
                                          12 CFR Part 327                                         PPP, PPPLF, and MMLF. For the reasons                  PPP loans are fully guaranteed as to
                                          RIN 3064–AF53                                           explained below, an IDI that participates              principal and accrued interest by the
                                                                                                  in the PPP, PPPLF, or MMLF programs                    Small Business Administration (SBA),
                                          Assessments, Mitigating the Deposit                     could be subject to increased deposit                  the amount of each being determined at
                                          Insurance Assessment Effect of                          insurance assessments absent a change                  the time the guarantee is exercised. As
                                          Participation in the Paycheck                           to the assessment regulations.                         a general matter, SBA guarantees are
                                          Protection Program (PPP), the PPP                                                                              backed by the full faith and credit of the
                                                                                                  B. Background
                                          Liquidity Facility, and the Money                                                                              U.S. Government. PPP loans also afford
                                          Market Mutual Fund Liquidity Facility                      Recent events have significantly and                borrowers forgiveness up to the
                                                                                                  adversely impacted the global economy                  principal amount of the PPP loan, if the
                                          AGENCY: Federal Deposit Insurance                       and financial markets. The spread of the               proceeds of the PPP loan are used for
                                          Corporation (FDIC).                                     Coronavirus Disease (COVID–19)                         certain expenses. The SBA reimburses
                                          ACTION: Final rule.                                     slowed economic activity in many                       PPP lenders for any amount of a PPP
                                                                                                  countries, including the United States.                loan that is forgiven. PPP lenders are not
                                          SUMMARY: The Federal Deposit                            Sudden disruptions in financial markets                held liable for any representations made
                                          Insurance Corporation is adopting a                     placed increasing liquidity pressure on                by PPP borrowers in connection with a
                                          final rule that mitigates the deposit                   money market mutual funds (MMFs)                       borrower’s request for PPP loan
                                          insurance assessment effects of                         and raised the cost of credit for most                 forgiveness.3 On June 5, 2020, the
                                          participating in the Paycheck Protection                borrowers. MMFs faced redemption                       Paycheck Protection Program Flexibility
                                          Program (PPP) established by the Small                  requests from clients with immediate                   Act of 2020 (PPP Flexibility Act) was
                                          Business Administration (SBA), and the                  cash needs and may need to sell a                      signed into law, amending key
                                          Paycheck Protection Program Liquidity                   significant number of assets to meet                   provisions of the CARES Act, including
                                          Facility (PPPLF) and Money Market                       these redemption requests, which could                 provisions related to loan maturity,
                                          Mutual Fund Liquidity Facility (MMLF)                   further increase market pressures.                     deferral of loan payments, and loan
                                          established by the Board of Governors of                   In order to prevent the disruption in               forgiveness.4 Among other changes, the
                                          the Federal Reserve System. The final                   the money markets from destabilizing                   amendments increase from two to five
                                          rule removes the effect of participation                the financial system, on March 18, 2020,               years the maturity of PPP loans that are
                                          in the PPP and borrowings under the                     the Board of Governors of the Federal                  approved by the SBA on or after June 5,
                                          PPPLF on various risk measures used to                  Reserve System (Board of Governors),                   2020, and provide greater flexibility for
                                          calculate an insured depository                         with approval of the Secretary of the                  borrowers to qualify for loan
                                          institution’s assessment rate, removes                  Treasury, authorized the Federal                       forgiveness.
                                          the effect of participation in the PPP and              Reserve Bank of Boston (FRBB) to                          In order to provide liquidity to small
                                          MMLF program on certain adjustments                     establish the MMLF, pursuant to section                business lenders and the broader credit
                                          to an insured depository institution’s                  13(3) of the Federal Reserve Act.1 Under               markets, and to help stabilize the
                                          assessment rate; provides an offset to an               the MMLF, the FRBB is extending non-                   financial system, on April 8, 2020, the
                                          insured depository institution’s                        recourse loans to eligible borrowers to                Board of Governors, with approval of
                                          assessment for the increase to its                      purchase assets from MMFs. Assets                      the Secretary of the Treasury,
                                          assessment base attributable to                         purchased from MMFs are posted as                      authorized each of the Federal Reserve
                                          participation in the PPP and MMLF; and                  collateral to the FRBB. Eligible                       Banks to extend credit under the PPPLF,
                                          removes the effect of participation in the              borrowers under the MMLF include                       pursuant to section 13(3) of the Federal
                                          PPP and MMLF when classifying                           IDIs. Eligible collateral under the MMLF               Reserve Act.5 Under the PPPLF, Federal
                                          insured depository institutions as small,               includes U.S. Treasuries and fully
                                          large, or highly complex for assessment                 guaranteed agency securities, securities                 2 Public Law 116–136 (Mar. 27, 2020).

                                          purposes.                                               issued by government-sponsored                           3 Under the PPP, eligible borrowers generally

                                                                                                  enterprises, and certain types of                      include businesses with fewer than 500 employees
                                          DATES: The final rule is effective June
                                                                                                                                                         or that are otherwise considered by the SBA to be
                                          26, 2020, and will apply as of April 1,                 commercial paper. The MMLF is                          small, including individuals operating sole
                                          2020.                                                   scheduled to terminate on September                    proprietorships or acting as independent
                                          FOR FURTHER INFORMATION CONTACT:                        30, 2020, unless extended by the Board                 contractors, certain franchisees, nonprofit
                                                                                                  of Governors.                                          corporations, veterans’ organizations, and Tribal
                                          Michael Spencer, Associate Director,                                                                           businesses. The loan amount under the PPP would
                                          202–898–7041, michspencer@fdic.gov;                        Small businesses also are facing
                                                                                                                                                         be limited to the lesser of $10 million and 250
                                          Ashley Mihalik, Chief, Banking and                      severe liquidity constraints and a                     percent of a borrower’s average monthly payroll
                                          Regulatory Policy, 202–898–3793,                        collapse in revenue streams, as millions               costs. For more information on the Paycheck
                                          amihalik@fdic.gov; Nefretete Smith,                     of Americans were ordered to stay                      Protection Program, see https://www.sba.gov/
                                                                                                  home, severely reducing their ability to               funding-programs/loans/coronavirus-relief-options/
                                          Counsel, 202–898–6851, nefsmith@                                                                               paycheck-protection-program-ppp.
                                          fdic.gov; Samuel Lutz, Counsel, 202–                    engage in normal commerce. Many                          4 Public Law 116–142 (June 5, 2020). The SBA

                                          898–3773, salutz@fdic.gov.                              small businesses were forced to close                  subsequently issued an interim final rule revising
                                                                                                  temporarily or furlough employees.                     the SBA’s interim final rule implementing sections
                                          SUPPLEMENTARY INFORMATION:                                                                                     1102 and 1106 of the CARES Act temporarily
                                                                                                  Continued access to financing will be
                                                                                                                                                         adding the Paycheck Protection Program to the
                                          I. Introduction                                         crucial for small businesses to weather                SBA’s 7(a) Loan Program published on April 15,
                                                                                                  economic disruptions caused by                         2020. See 85 FR 20811 (Apr. 15, 2020) and 85 FR
                                          A. Legal Authority




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                                                                                                  COVID–19 and, ultimately, to help                      36308 (June 16, 2020).
                                             The FDIC, under its general                          restore economic activity.                               5 12 U.S.C. 343(3). On April 30, 2020, the facility

                                          rulemaking authority in Section 9 of the                   As part of the Coronavirus Aid, Relief,             was renamed the Paycheck Protection Program
                                                                                                                                                         Liquidity Facility, from Paycheck Protection
                                          FDI Act, and its specific authority under               and Economic Security Act (CARES                       Program Lending Facility. See Periodic Report:
                                          Section 7 of the FDI Act to establish a                                                                        Update on Outstanding Lending Facilities
                                          risk-based assessment system and set                      1 12 U.S.C. 343(3).                                  Authorized by the Board under Section 13(3) of the



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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                 38283

                                          Reserve Banks are extending non-                        assessment rate.10 An IDI’s assessment                      Absent a change to the assessment
                                          recourse loans to institutions that are                 base and assessment rate are determined                  rules, an IDI that participates in the PPP,
                                          eligible to make PPP loans, including                   each quarter based on supervisory                        PPPLF, or MMLF programs could be
                                          insured depository institutions (IDIs).                 ratings and information collected on the                 subject to increased deposit insurance
                                          Under the PPPLF, only PPP loans that                    Consolidated Reports of Condition and                    assessments. For example, an institution
                                          are guaranteed by the SBA with respect                  Income (Call Report) or the Report of                    that holds PPP loans, including loans
                                          to both principal and interest and that                 Assets and Liabilities of U.S. Branches                  pledged to the PPPLF, would increase
                                          are originated by an eligible institution               and Agencies of Foreign Banks (FFIEC                     its total loan portfolio, all else equal,
                                          may be pledged as collateral to the                     002), as appropriate. Generally, an IDI’s                which may increase its assessment rate.
                                          Federal Reserve Banks (loans pledged to                 assessment base equals its average                       An IDI that receives funding under the
                                          the PPPLF). The maturity date of the                    consolidated total assets minus its                      PPPLF would increase the total assets
                                          extension of credit under the PPPLF 6                   average tangible equity.11 An IDI’s                      on its balance sheet (equal to the
                                          equals the maturity date of the PPP                     assessment rate is calculated using                      amount of PPP loans pledged to the
                                          loans pledged to secure the extension of                different methods based on whether the                   Federal Reserve Banks), and increase its
                                          credit.7 No new extensions of credit will               IDI is a small, large, or highly complex                 total liabilities by the same amount,
                                          be made under the PPPLF after                           institution.12 For assessment purposes,                  which would increase the IDI’s
                                          September 30, 2020, unless extended by                  a small bank is generally defined as an                  assessment base and also may increase
                                          the Board of Governors and the                          institution with less than $10 billion in                its assessment rate. An IDI that obtains
                                          Department of the Treasury.                             total assets, a large bank is generally                  additional funding, such as additional
                                             To facilitate use of the MMLF and                    defined as an institution with $10                       deposits or secured borrowings, to make
                                          PPPLF, the FDIC, Board of Governors,                    billion or more in total assets, and a                   PPP loans would increase its total
                                          and Comptroller of the Currency                         highly complex bank is generally                         liabilities and total assets by that
                                          (together, the agencies) adopted interim                defined as an institution that has $50                   amount of funding, which would
                                          final rules on March 23, 2020, and April                billion or more in total assets and is                   increase its assessment base and also
                                          13, 2020, respectively, to allow banking                controlled by a parent holding company                   may increase its assessment rate. An IDI
                                          organizations to neutralize the                         that has $500 billion or more in total                   that relies on existing funding,
                                          regulatory capital effects of purchasing                assets, or is a processing bank or trust                 including deposits already at the
                                          assets under the MMLF program and                       company.13                                               institution, to make PPP loans would
                                          loans pledged to the PPPLF.8 Consistent                                                                          not increase its total liabilities or total
                                                                                                     Assessment rates for established small                assets, which would not increase its
                                          with Section 1102 of the CARES Act,                     banks are calculated based on eight risk
                                          the April 2020 interim final rule also                                                                           assessment base.
                                                                                                  measures that are statistically significant                 Similarly, an IDI that participates in
                                          required banking organizations to apply                 in predicting the probability of an                      the MMLF would increase its total
                                          a zero percent risk weight to PPP loans                 institution’s failure over a three-year                  assets by the amount of assets
                                          originated by the banking organization                  horizon.14 Large banks are assessed                      purchased from MMFs under the MMLF
                                          under the PPP for purposes of the                       using a scorecard approach that                          and increase its liabilities by the same
                                          banking organization’s risk-based                       combines CAMELS ratings and certain                      amount, which in turn would increase
                                          capital requirements.                                   forward-looking financial measures to                    its assessment base and may also
                                          C. Deposit Insurance Assessments                        assess the risk that a large bank poses to               increase its assessment rate.
                                                                                                  the deposit insurance fund (DIF).15 All
                                            Pursuant to Section 7 of the FDI Act,                 institutions are subject to adjustments to               C. The Proposed Rule
                                          the FDIC has established a risk-based                   their assessment rates for certain                         On May 20, 2020, the FDIC published
                                          assessment system through which it                      liabilities that can increase or reduce                  in the Federal Register a notice of
                                          charges all IDIs an assessment amount                   loss to the DIF in the event the bank                    proposed rulemaking (the proposed
                                          for deposit insurance.9                                 fails.16 In addition, the FDIC may adjust                rule, or proposal) 18 that would mitigate
                                            Under the FDIC’s regulations, an IDI’s                a large bank’s total score, which is used                the deposit insurance assessment effects
                                          assessment is equal to its assessment                   in the calculation of its assessment rate,               of an IDI’s participation in the PPP,
                                          base multiplied by its risk-based                       based upon significant risk factors not                  PPPLF, and MMLF programs.19 To
                                                                                                  adequately captured in the appropriate                   remove the effect of these programs on
                                          Federal Reserve Act May 15, 2020, Board of              scorecard.17                                             the risk measures used to determine the
                                          Governors of the Federal Reserve System, available                                                               deposit insurance assessment rate for
                                          at: https://www.federalreserve.gov/publications/
                                          files/mlf-msnlf-mself-and-ppplf-5-15-20.pdf.
                                                                                                    10 See 12 CFR 327.3(b)(1).                             each IDI, the FDIC proposed to exclude
                                             6 The maturity date of the extension of credit
                                                                                                    11 See 12 CFR 327.5.                                   PPP loans, which include loans pledged
                                          under the PPPLF will be accelerated if the
                                                                                                    12 See 12 CFR 327.16(a) and (b).
                                                                                                                                                           to the PPPLF, from an institution’s loan
                                                                                                     13 As used in this final rule, the term ‘‘bank’’ is
                                          underlying PPP loan goes into default and the                                                                    portfolio; exclude loans pledged to the
                                          eligible borrower sells the PPP Loan to the SBA to      synonymous with the term ‘‘insured depository
                                                                                                  institution’’ as it is used in section 3(c)(2) of the
                                                                                                                                                           PPPLF from an institution’s total assets;
                                          realize the SBA guarantee. The maturity date of the
                                          extension of credit under the PPPLF also will be        Federal Deposit Insurance Act (FDI Act), 12 U.S.C.       and, for institutions subject to the large
                                          accelerated to the extent of any PPP loan               1813(c)(2). As used in this final rule, the term         or highly complex bank scorecard,
                                          forgiveness reimbursement received by the eligible      ‘‘small bank’’ is synonymous with the term ‘‘small       exclude amounts borrowed from the
                                          borrower from the SBA.                                  institution’’ and the term ‘‘large bank’’ is
                                                                                                  synonymous with the term ‘‘large institution’’ or
                                                                                                                                                           Federal Reserve Banks under the PPPLF
                                             7 Under the SBA’s interim final rule, a lender may

                                          request that the SBA purchase the expected              ‘‘highly complex institution,’’ as the terms are         from an institution’s liabilities. In
                                          forgiveness amount of a PPP loan or pool of PPP         defined in 12 CFR 327.8.                                 addition, because participation in the
                                          loans at the end of the covered period. See Interim        14 See 12 CFR 327.16(a); see also 81 FR 32180
                                                                                                                                                           PPPLF and MMLF programs will have




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                                          Final Rule ‘‘Business Loan Program Temporary            (May 20, 2016).                                          the effect of expanding an IDI’s balance
                                          Changes; Paycheck Protection Program,’’ 85 FR              15 See 12 CFR 327.16(b); see also 76 FR 10672

                                          20811, 20816 (Apr. 15, 2020) and 85 FR 36308 (June      (Feb. 25, 2011) and 77 FR 66000 (Oct. 31, 2012).
                                                                                                                                                           sheet (and, by extension, its assessment
                                          16, 2020).                                                 16 See 12 CFR 327.16(e).                              base), the FDIC proposed to exclude
                                             8 See 85 FR 16232 (Mar. 23, 2020) and 85 FR             17 See 12 CFR 327.16(b)(3); see also Assessment
                                          20387 (Apr. 13, 2020).                                                                                            18 85 FR 30649 (May 20, 2020).
                                                                                                  Rate Adjustment Guidelines for Large and Highly
                                             9 See 12 U.S.C. 1817(b).                             Complex Institutions, 76 FR 57992 (Sept. 19, 2011).       19 See 12 U.S.C. 1817, 1819 (Tenth).




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                                          38284                Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          loans pledged to the PPPLF and assets                   below, the final rule includes certain                 businesses and helping to stabilize the
                                          purchased under the MMLF in the                         additional mitigation steps beyond                     broader economy in the midst of the
                                          calculation of certain adjustments to an                those in the proposed rule that will                   economic disruption caused by COVID–
                                          IDI’s assessment rate, and to provide an                more fully mitigate the assessment effect              19, as well as in recognition that some
                                          offset to an IDI’s total assessment                     of participation in the aforementioned                 banks have funded PPP loans through
                                          amount for the increase to its                          programs for more institutions, but may                additional liabilities other than
                                          assessment base attributable to                         in certain cases result in over-mitigation             borrowings under the PPPLF, under the
                                          participation in the PPPLF and MMLF.                    for some institutions. At the same time,               final rule the FDIC will exclude the
                                          Finally, in classifying IDIs as small,                  the FDIC declined to make certain                      quarter-end outstanding balance of all
                                          large, or highly complex for assessment                 adjustments requested by commenters,                   PPP loans from an IDI’s total assets in
                                          purposes, the FDIC proposed to exclude                  in part because such additional                        calculating an IDI’s assessment rate and
                                          from an IDI’s total assets the amount of                adjustments, when combined with the                    the offset to an IDI’s assessment amount
                                          loans pledged to the PPPLF and assets                   other provisions of the final rule, would              due to the inclusion of PPP loans in its
                                          purchased under the MMLF.                               likely have resulted, in the FDIC’s                    assessment base. The FDIC expects that
                                             In response to the proposal, the FDIC                estimation, in more over-mitigation than               this exclusion will result in a more
                                          received 41 comment letters from                        would be acceptable.                                   complete mitigation of the assessment
                                          depository institutions, depository                                                                            effects of participation in PPP lending.
                                          institution holding companies, trade                    1. Exclusion of All PPP Loans                             As described below, the FDIC will
                                          associations, and other interested                         Most of the comments the FDIC                       exclude the quarter-end outstanding
                                          parties.20 As further detailed below,                   received in response to the proposed                   balance of all PPP loans from an IDI’s
                                          commenters generally supported the                      rule stated that the proposed                          total assets in the applicable risk
                                          FDIC’s efforts to mitigate the deposit                  modifications would not completely                     measures used to determine an IDI’s
                                          insurance effects of an IDI’s                           offset the impact of PPP lending on                    assessment rate. In addition, because
                                          participation in the PPP, PPPLF, and                    assessments. Many of these commenters                  participation in the MMLF program will
                                          MMLF programs, but expressed                            requested that the FDIC exclude all PPP                have the effect of expanding an IDI’s
                                          concerns with certain aspects of the                    loans, whether funded under the PPPLF                  balance sheet and because PPP lending
                                          proposal. The FDIC considered all                       or through other sources of liquidity,                 funded by additional liabilities could
                                          comments received and is making some                    including deposits or Federal Home                     have the effect of expanding an IDI’s
                                          changes in the final rule, while                        Loan Bank (FHLB) advances, from the                    balance sheet (and, by extension, its
                                          clarifying other aspects of the rule that               calculation of an IDI’s assessment rate,               assessment base), the FDIC will provide
                                          remain unchanged from the proposed                      assessment base, or both, so that the                  an offset to an IDI’s total assessment
                                          rule.                                                   bank’s assessment would be mitigated                   amount for the increase to its
                                                                                                  accordingly, rather than excluding only                assessment base attributable to PPP
                                          II. The Final Rule                                      loans pledged to the PPPLF.                            lending and participation in the MMLF.
                                          A. Summary                                                 A bank that funded its PPP loans with               Under the final rule, the FDIC will
                                                                                                  existing balance sheet liquidity would                 calculate the offset to an IDI’s total
                                             Under the final rule, the FDIC will
                                                                                                  not have increased its total assets or                 assessment amount based on its quarter-
                                          remove the effect of participation in the
                                                                                                  total liabilities, and including these                 end outstanding balance of PPP loans
                                          PPP and borrowings under the PPPLF
                                                                                                  loans in the offset to its assessment                  and the quarterly average amount of
                                          on various risk measures used to
                                                                                                  would not be necessary because its                     assets purchased under the MMLF. The
                                          calculate an IDI’s assessment rate,
                                                                                                  assessment base would not have                         FDIC also will exclude the outstanding
                                          remove the effect of participation in the
                                                                                                  increased. Similarly, removing PPP                     balance of PPP loans and assets
                                          PPP and MMLF program on certain
                                                                                                  loans from total assets in calculating an              purchased under the MMLF in the
                                          adjustments to an insured depository
                                                                                                  IDI’s assessment rate would not be                     calculation of certain adjustments to an
                                          institution’s assessment rate; provide an
                                                                                                  necessary if such loans did not increase               IDI’s assessment rate.
                                          offset to an insured depository
                                                                                                  the bank’s total assets. For these                        Moreover, in classifying IDIs as small,
                                          institution’s assessment for the increase
                                                                                                  reasons, the proposal would have                       large, or highly complex for assessment
                                          to its assessment base attributable to
                                                                                                  removed only PPP loans pledged to the                  purposes, the FDIC also will exclude
                                          participation in the PPP and MMLF; and
                                                                                                  PPPLF from an IDI’s total assets in                    from an IDI’s total assets the outstanding
                                          remove the effect of participation in the
                                                                                                  calculating its deposit insurance                      balance of PPP loans and assets
                                          PPP and MMLF when classifying
                                                                                                  assessment rate and certain other                      purchased under the MMLF.
                                          insured depository institutions as small,
                                                                                                  measures, and in calculating the offset                   Because it is not possible for the FDIC
                                          large, or highly complex for assessment
                                                                                                  due to the increase in its assessment                  to quantify how much of an IDI’s total
                                          purposes.
                                             In the final rule, the FDIC tried to                 base due to participation in the PPPLF.                assets may have increased due to PPP
                                          balance its policy objective of                         The FDIC understands that some banks                   loans relative to other balance sheet
                                          mitigating, to the fullest extent possible,             have funded PPP loans through                          changes, including increased cash or
                                          the deposit insurance assessment effect                 additional liabilities other than                      other loans made either in response to
                                          of participation in the PPP, PPPLF, and                 borrowings under the PPPLF, which                      the economic disruption caused by
                                          MMLF, while minimizing the extent to                    would result in an increase to a bank’s                COVID–19 or that would have otherwise
                                                                                                  total assets and total liabilities. For                been made in the normal course of
                                          which the final rule would result in an
                                                                                                  banks that funded PPP loans by                         business, the final rule excludes all PPP
                                          IDI paying less than it would have paid
                                                                                                  obtaining additional liabilities other                 loans from an IDI’s total assets in
                                          if it did not participate in the PPP,
                                                                                                  than borrowings under the PPPLF, the                   calculating its deposit insurance
                                          PPPLF, or MMLF. In response to




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                                                                                                  proposal would not have fully mitigated                assessment, rather than providing
                                          comments and based on updated
                                                                                                  the deposit insurance assessment effects               incomplete assessment mitigation for
                                          assumptions, as described further
                                                                                                  of participation in the PPP.                           banks that funded PPP loans through
                                            20 See comments on the proposal, available at            After considering comments received,                additional liabilities other than
                                          https://www.fdic.gov/regulations/laws/federal/          and in recognition of the important role               borrowings under the PPPLF. To the
                                          2020/2020-assessments-ppp-3064-af53.html.               IDIs play in providing liquidity to small              extent that an institution did not


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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                    38285

                                          increase its total assets as a result of PPP            2. Tier 1 Leverage Ratio                                for the reporting period ending on June
                                          participation, the final rule could                        Some commenters also suggested that                  30, 2020 becomes available.23
                                          provide an assessment reduction that                    the leverage ratio, as applied in the
                                          exceeds the actual increase in                                                                                  B. Mitigating the Effects of PPP Loans on
                                                                                                  calculation of an IDI’s assessment rate,                an IDI’s Assessment Rate
                                          assessments that an institution would                   should be reduced by the quarter-end
                                          have experienced due to participation in                outstanding balances of all PPP loans. In                 Under the final rule, to mitigate the
                                          the PPP.                                                accordance with the agencies’ April 13,
                                            Some commenters requested that the                                                                            assessment effect of PPP loans, the FDIC
                                                                                                  2020, regulatory capital interim final                  will exclude the outstanding amount of
                                          FDIC specifically exclude the quarter-                  rule, banking organizations are required
                                          end balance of outstanding PPP loans                                                                            PPP loans held by an IDI and
                                                                                                  to neutralize the regulatory capital                    borrowings under the PPPLF, from
                                          when calculating an IDI’s assessment, as                effects of assets pledged to the PPPLF on
                                          opposed to the quarterly average of such                                                                        various risk measures used in the
                                                                                                  leverage capital ratios.22 This                         calculation of an IDI’s deposit insurance
                                          loans. Under the NPR, the FDIC                          requirement is due to the non-recourse
                                          proposed to exclude the quarter-end                                                                             assessment rate, as described in more
                                                                                                  nature of the Federal Reserve’s
                                          balance of outstanding loans pledged to                                                                         detail below.
                                                                                                  extension of credit to the banking
                                          the PPPLF from an IDI’s total assets in                 organization, a protection that does not                1. Established Small Institutions
                                          those risk measures used to determine                   exist if the banking organization funds
                                          the deposit insurance assessment rate                   PPP loans using other sources of                        a. Exclusion of PPP Loans From Total
                                          that are based on quarter-end                           liquidity.                                              Assets in Various Risk Measures
                                          outstanding amounts. For measures                          To remain consistent with the
                                          reported on an average basis, the FDIC                                                                             The final rule excludes the
                                                                                                  regulatory capital interim final rule, and
                                          proposed to exclude the quarterly                                                                               outstanding balance of all PPP loans
                                                                                                  consistent with the proposed rule for
                                          average of loans pledged to the PPPLF.                  mitigating assessment effects of                        from total assets in risk measures used
                                          For example, an IDI’s assessment base is                participation in the PPP, the FDIC will                 to determine an established small
                                          determined by subtracting its average                   not modify its deposit insurance                        institution’s assessment rate: the net
                                          tangible equity from average                            assessment pricing system with respect                  income before taxes to total assets
                                          consolidated total assets. In calculating               to the Tier 1 leverage ratio, which is one              ratio,24 the nonperforming loans and
                                          the offset to an IDI’s total assessment                 of the measures used to determine the                   leases to gross assets ratio, the other real
                                          amount for the increase due to                          assessment rate for small, large, and                   estate owned to gross assets ratio, the
                                          participation in the PPPLF and MMLF,                    highly complex IDIs. Therefore, the                     brokered deposit ratio, the one-year
                                          the FDIC proposed to exclude quarterly                  neutralization of effects of participation              asset growth measure, and the loan mix
                                          average loans pledged to the PPPLF and                  in the PPPLF will be automatically                      index (LMI).
                                          quarterly average assets purchased                      reflected in an IDI’s assessment because                  Under the proposal, for established
                                          under the MMLF. Commenters asserted                     the FDIC’s risk-based assessment system                 small banks, the FDIC would have
                                          that the assessment relief provided                     incorporates an IDI’s regulatory capital                excluded the outstanding balance of
                                          under the proposal would be limited                     reporting of its Tier 1 leverage ratio.                 loans pledged to the PPPLF from total
                                          because an IDI’s average PPPLF
                                                                                                  3. Assessment Calculators                               assets in the calculation of these risk
                                          participation over a quarter can be
                                          considerably less than its quarter-end                     Three commenters asked that the                      measures. As discussed above, some
                                          PPP loan balance.                                       FDIC post revised assessment                            commenters recommended that the
                                            After considering comments received,                  calculators as soon as possible. The                    FDIC exclude all PPP loans from
                                          and to minimize additional reporting                    FDIC will post on its public website                    specific measures utilized throughout
                                          burden, under the final rule the FDIC                   assessment calculators that reflect the                 the assessment rate calculation for
                                          will exclude the quarter-end                            revisions under the final rule once data                established small banks, including from
                                          outstanding balance of PPP loans in                                                                             the net income before taxes to total
                                          mitigating the effect of PPP participation              implement revisions to the Call Report and FFIEC        assets ratio, the nonperforming loans
                                          on an IDI’s deposit insurance                           002 that will take effect for the June 30, 2020,        and leases to gross assets ratio, the other
                                                                                                  reporting period. Starting with the June 30, 2020,
                                          assessment, both for risk measures that                 report date, the agencies will collect seven
                                                                                                                                                          real estate owned to gross assets ratio,
                                          are calculated using amounts reported                   additional items on the Call Report (FFIEC 031,         the brokered deposit ratio, and the one-
                                          as of quarter-end and for calculations                  FFIEC 041, and FFIEC 051) that the FDIC will use        year asset growth measure. For the
                                          that use amounts reported on an average                 to make the adjustments described in the final rule.    reasons described above, under the final
                                                                                                  The additional items are: (1) The quarter-end
                                          basis.                                                  outstanding balance of PPP loans; (2) the               rule, the FDIC will exclude the quarter-
                                            Changes to reporting requirements                     outstanding balance of loans pledged to the PPPLF       end outstanding amount of PPP loans,
                                          applicable to the Consolidated Reports                  as of quarter-end; (3) the quarterly average amount     whether or not they have been pledged
                                          of Condition and Income (Call Report),                  of loans pledged to the PPPLF; (4) the outstanding
                                                                                                  balance of borrowings from the Federal Reserve
                                                                                                                                                          to the PPPLF, from total assets in risk
                                          the Report of Assets and Liabilities of                 Banks under the PPPLF with a remaining maturity         measures used to determine an
                                          U.S. Branches and Agencies of Foreign                   of one year or less, as of quarter-end; (5) the         established small institution’s
                                          Banks, and their respective instructions,               outstanding balance of borrowings from the Federal      assessment rate.
                                          have been implemented in order to                       Reserve Banks under the PPPLF with a remaining
                                                                                                  maturity of greater than one year, as of quarter-end;
                                          make the adjustments to the assessment                  (6) the outstanding amount of assets purchased             23 https://www.fdic.gov/deposit/insurance/
                                          system under the final rule. These                      from MMFs under the MMLF as of quarter-end; and         calculator.html.
                                          changes were effectuated in                             (7) the quarterly average amount of assets                 24 The FDIC expects that IDIs that participate in

                                          coordination with the other member                      purchased under the MMLF. In addition, the              the PPP, PPPLF, and MMLF will earn additional




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                                                                                                  agencies will collect two additional items on the       income from participation in these programs. To
                                          entities of the Federal Financial                       Report of Assets and Liabilities of U.S. Branches       minimize additional reporting burden, and as
                                          Institutions Examination Council.21                     and Agencies of Foreign Banks (FFIEC 002): the          proposed in the NPR, the FDIC is not excluding
                                                                                                  quarterly average amount of loans pledged to the        income related to participation in these programs
                                            21 The agencies requested and received                PPPLF and the quarterly average amount of assets        from the net income before taxes to total assets ratio
                                          emergency approvals on May 27, 2020, from the           purchased from MMFs under the MMLF.                     in the calculation of an IDI’s deposit insurance
                                          Office of Management and Budget (OMB) to                   22 See 85 FR 20387 (April 13, 2020).                 assessment rate.



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                                          38286                Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          b. Exclusion of PPP Loans From the                      loan category rather than as a                         measure for purposes of determining a
                                          Loan Portfolio in the LMI                               memoranda item as operationally                        large or highly complex bank’s
                                             The LMI is a measure of the extent to                burdensome. Two commenters                             assessment rate. Some commenters
                                          which an IDI’s total assets include                     supported reducing unnecessary data                    specified that, in making these
                                          higher-risk categories of loans.                        collection and categorization and                      modifications, the FDIC should exclude
                                          Consistent with the proposed rule,                      reporting of PPP loans as C&I Loans.                   the quarter-end balance of outstanding
                                          under the final rule, the FDIC will                       The FDIC has considered these                        PPP loans, as opposed to the quarterly
                                          exclude PPP loans, which include loans                  comments and is adopting the waterfall                 average.
                                          pledged to the PPPLF, from an                           approach as proposed. The FDIC views                      For the reasons described above,
                                          institution’s loan portfolio in calculating             the waterfall approach as the approach                 under the final rule the FDIC will
                                          the LMI, based on a waterfall                           that most effectively balances the goal of             exclude the quarter-end outstanding
                                          approach.25 Under the final rule, the                   minimizing reporting burden while                      amount of PPP loans, whether or not
                                          FDIC will first exclude the outstanding                 providing reasonably accurate                          they have been pledged to the PPPLF,
                                          balance of PPP loans from the balance                   mitigation for most institutions of the                from total assets in the core earnings
                                          of C&I Loans in the calculation of the                  assessment effect of PPP loans.                        ratio 27 and the short-term funding
                                          LMI. In the unlikely event that the                     Accordingly, the FDIC is adopting the                  measure 28 used to determine a large or
                                          outstanding balance of PPP loans                        proposed waterfall approach as final                   highly complex institution’s assessment
                                          exceeds the balance of C&I Loans, the                   and will apply it, as appropriate, in the              rate.
                                          FDIC will exclude any remaining                         calculation of the LMI for small banks
                                                                                                                                                         b. Exclusion of PPP Loans From the
                                          balance of these loans from the balance                 (and in the calculation of the growth-
                                                                                                                                                         Loan Portfolio in Various Risk Measures
                                          of Agricultural Loans, up to the total                  adjusted portfolio concentration
                                                                                                  measure and loss severity measure for                     As proposed, the FDIC will exclude
                                          amount of Agricultural Loans, in the                                                                           PPP loans from an IDI’s loan portfolio in
                                          calculation of the LMI.26                               large or highly complex banks, as
                                                                                                  discussed below).                                      risk measures used to determine a large
                                             While some commenters supported
                                                                                                    Two commenters requested that all                    or highly complex IDI’s assessment rate.
                                          the assumptions applied under the
                                                                                                  PPP loans be excluded from total assets                In calculating the growth-adjusted
                                          waterfall approach described in the
                                                                                                  in the calculation of the LMI while                    portfolio concentration measure,29
                                          NPR, others viewed the approach as
                                                                                                  others expressed support for the                       which is applicable to large IDIs, the
                                          unnecessarily complex. Several
                                                                                                  proposed modifications to the LMI.                     FDIC will exclude the quarter-end
                                          commenters confirmed that PPP loans
                                                                                                  Under the final rule and as described                  outstanding balance of PPP loans from
                                          will be reported as C&I Loans,
                                                                                                  above, the FDIC will exclude the                       C&I Loans.30 In calculating the trading
                                          Agricultural Loans, or in All Other
                                                                                                  quarter-end outstanding balance of PPP                 asset ratio,31 which is applicable to
                                          Loans. Two commenters suggested
                                                                                                  loans from an IDI’s loan portfolio (the                highly complex IDIs, the FDIC will
                                          reporting PPP loans as a separate loan
                                                                                                  numerator) and its total assets (the                   reduce the balance of loans by the
                                          category on Schedule RC–C rather than
                                                                                                  denominator) in the calculation of the                 quarter-end outstanding balance of PPP
                                          in the form of additional memoranda
                                                                                                  LMI.                                                   loans.32 The FDIC also will exclude the
                                          items, while another two commenters
                                          supported the reporting revisions                       2. Large or Highly Complex Institutions                  27 For the core earnings ratio, the FDIC divides
                                          recently implemented to make the                                                                               the four-quarter sum of merger-adjusted core
                                                                                                     Under the final rule, the FDIC will
                                          adjustments to the assessment system,                                                                          earnings by the average of five quarter-end total
                                                                                                  remove the outstanding balance of PPP
                                          noting that many institutions have                                                                             assets (most recent and four prior quarters). See
                                                                                                  loans from a large or highly complex                   Appendix A to subpart A of 12 CFR part 327.
                                          already established processes to report
                                                                                                  bank’s loan portfolio and its total assets               28 For highly complex IDIs, the short-term
                                          these loans in existing categories on                                                                          funding ratio is calculated by dividing average
                                          Schedule RC–C and would therefore                       in calculating its assessment rate. As
                                                                                                                                                         short-term funding by average total assets. See
                                          view reporting PPP loans in a separate                  proposed, under the final rule the FDIC                Appendix A to subpart A of 12 CFR part 327.
                                                                                                  will also exclude amounts borrowed                       29 For large banks, the concentration measure is

                                             25 Based on data from the SBA and on the terms       from the Federal Reserve Banks under                   the higher of the ratio of higher-risk assets to Tier
                                          of the PPP, the FDIC expects that most PPP loans        the PPPLF from a large or highly                       1 capital and reserves, and the growth-adjusted
                                          will be categorized as Commercial and Industrial        complex bank’s liabilities in calculating              portfolio measure. For highly complex institutions,
                                          (C&I) Loans. Collateral is not required to secure the                                                          the concentration measure is the highest of three
                                                                                                  its assessment rate.                                   measures: the ratio of higher risk assets to Tier 1
                                          loans. Therefore, the FDIC expects that PPP loans
                                          will not be included in other loan categories, such                                                            capital and reserves, the ratio of top 20 counterparty
                                                                                                  a. Exclusion of PPP Loans From Total                   exposure to Tier 1 capital and reserves, and the
                                          as those that are secured by real estate or consumer
                                          loans, in measures used to determine an IDI’s
                                                                                                  Assets in the Core Earnings Ratio and                  ratio of the largest counterparty exposure to Tier 1
                                          deposit insurance assessment rate. See Public Law       the Short-Term Funding Measure                         capital and reserves. See Appendix A to subpart A
                                          116–136 (Mar. 27, 2020), Public Law 116–142 (June                                                              of part 327.
                                                                                                     As described above, the FDIC received                 30 All Other Loans and Agricultural Loans are not
                                          5, 2020), 85 FR 20811 (Apr. 15, 2020), 85 FR 36308
                                          (June 16, 2020), and Slide 8, Industry by NAICS         numerous comments stating that the                     included in the growth-adjusted portfolio
                                          Subsector, Paycheck Protection Program (PPP)            proposed modifications would not                       concentration measure; therefore, consistent with
                                          Report: Approvals through 06/06/2020, Small             completely offset the impact of PPP                    the proposal, the FDIC will exclude the outstanding
                                          Business Administration, available at: https://                                                                balance of PPP loans from the balance of C&I Loans
                                                                                                  lending on assessment rates, and many                  under the final rule. The loan concentration
                                          www.sba.gov/sites/default/files/2020-06/PPP_
                                          Report_Public_200606%20FINAL_-508.pdf.                  of these commenters recommended that                   categories used in the growth-adjusted portfolio
                                             26 All Other Loans are not included in the LMI;      the FDIC exclude the outstanding                       concentration measure are: construction and
                                          therefore, the FDIC will exclude the outstanding        balance of PPP loans when calculating                  development, other commercial real estate, first lien
                                          balance of PPP loans, which include loans pledged                                                              residential mortgages (including non-agency
                                                                                                  a large or highly complex bank’s                       residential mortgage-backed securities), closed-end
                                          to the PPPLF, first from the balance of C&I Loans,
                                          followed by Agricultural Loans. The loan categories
                                                                                                  assessment, rather than excluding only                 junior liens and home equity lines of credit,




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                                          used in the Loan Mix Index are: Construction and        the loans pledged to the PPPLF.                        commercial and industrial loans, credit card loans,
                                          Development, Commercial and Industrial, Leases,         Specifically, several commenters                       and other consumer loans. Appendix C to subpart
                                          Other Consumer, Real Estate Loans Residual,                                                                    A of 12 CFR part 327.
                                                                                                  recommended that the FDIC exclude all                    31 See 12 CFR 327.16(b)(2)(ii)(A)(2)(vii).
                                          Multifamily Residential, Nonfarm Nonresidential,
                                          1–4 Family Residential, Loans to Depository Banks,
                                                                                                  PPP loans from total assets in the                       32 To minimize reporting burden, the FDIC will

                                          Agricultural Real Estate, Agricultural Loans. 12 CFR    calculation of the core earnings ratio                 reduce average loans in the trading asset ratio by
                                          327.16(a)(1)(ii)(B).                                    and the average short-term funding                     the outstanding balance of PPP loans, as of quarter-



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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                  38287

                                          quarter-end balance of outstanding PPP                  calculating the balance sheet liquidity                FDIC will exclude any remaining
                                          loans from a large or highly complex                    ratio, the FDIC will treat the quarter-end             balance from All Other Loans, up to the
                                          IDI’s loan portfolio in calculating the                 outstanding balance of PPP loans that                  total amount of All Other Loans,
                                          loss severity measure, as described                     exceed borrowings from the Federal                     followed by Agricultural Loans, up to
                                          below.                                                  Reserve Banks under the PPPLF as                       the total amount of Agricultural Loans.
                                             A few commenters suggested that PPP                  highly liquid assets, as proposed.                        To the extent that an IDI’s outstanding
                                          loans should not be classified as ‘‘higher              Because PPP loans are riskless and                     PPP loans are not pledged to the PPPLF,
                                          risk assets’’ in calculating the                        banks with PPP loans in excess of                      such loans may be funded by a variety
                                          concentration measures for large or                     PPPLF borrowings can access additional                 of liabilities, such as deposits and
                                          highly complex institutions. In response                liquidity by pledging such loans to                    secured borrowings. While IDIs will
                                          to these comments the FDIC is clarifying                PPPLF, the FDIC will treat these PPP                   report borrowings under the PPPLF that
                                          that government guaranteed loans are                    loans as highly liquid assets. To the                  are secured by PPP loans, the FDIC will
                                          not considered ‘‘higher-risk assets’’ for               extent that a PPP loan represents                      not have sufficient data to determine
                                          assessment purposes. Because PPP loans                  collateral for borrowings other than                   other sources of funding for an IDI’s PPP
                                          are guaranteed by the SBA, they are                     under the PPPLF—such as an FHLB                        loans. Obtaining such data would
                                          already excluded from ‘‘higher-risk                     advance—treating the loan as highly                    require additional reporting burden on
                                          assets’’ in calculating the concentration               liquid will provide an assessment                      IDIs. Because the FDIC will not have
                                          measures for large or highly complex                    benefit for IDIs that may not be able to               sufficient data to remove each type of
                                          institutions and no additional                          readily access additional liquidity. PPP               non-PPPLF funding used to make PPP
                                          modification is necessary.33                            loans can no longer be pledged as                      loans, under the final rule the FDIC will
                                                                                                  collateral to the PPPLF after September                remove PPP loans in excess of its PPPLF
                                          c. Exclusion of Borrowings Under the                    30, 2020, the date after which no new                  borrowings from a large or highly
                                          PPPLF From Total Liabilities in Various                 extensions of credit will be made under                complex IDI’s loan portfolio based on
                                          Risk Measures                                           the PPPLF, unless extended by the                      the waterfall approach described above
                                             As proposed, under the final rule the                Board of Governors and the Department                  and reallocate the same amount to cash.
                                          FDIC will exclude borrowings from the                   of Treasury. Therefore, under the final                Such treatment of PPP loans is
                                          Federal Reserve Banks under the PPPLF                   rule, the quarter-end outstanding                      consistent with the proposal to treat PPP
                                          from an institution’s liabilities in the                balance of PPP loans that exceed                       loans in excess of PPPLF borrowings as
                                          calculation of the core deposit ratio, the              borrowings from the Federal Reserve                    riskless for purposes of calculating a
                                          balance sheet liquidity ratio, and the                  Banks under the PPPLF will be treated                  large or highly complex IDI’s loss
                                          loss severity measure used to determine                 as highly liquid assets until September                severity score.
                                          a large or highly complex IDI’s                         30, 2020, unless the Board of Governors                   To match the removal of PPP loans
                                          assessment rate. The final rule clarifies               and the Department of Treasury extend                  funded through borrowings under the
                                          that the exclusion of amounts borrowed                  the deadline to apply for new                          PPPLF from an IDI’s loan portfolio, the
                                          from the Federal Reserve Banks under                    extensions of credit under the PPPLF.                  FDIC will remove the total amount of
                                          the PPPLF from an institution’s total                   d. Treatment of PPP Loans and                          outstanding borrowings from the
                                          liabilities will only affect risk measures              Borrowings Under the PPPLF in                          Federal Reserve Banks under the PPPLF
                                          used to determine the assessment rate                   Calculating the Loss Severity Measure                  from short- and long-term secured
                                          for a large or highly complex IDI                                                                              borrowings, as appropriate.
                                          because secured liabilities are not                        The loss severity measure estimates
                                          factored into the risk measures for                     the relative magnitude of potential                    C. Mitigating the Effects of PPP Loans
                                          determining the rate for an established                 losses to the DIF in the event of a large              and Assets Purchased Under the MMLF
                                          small IDI.                                              or highly complex IDI’s failure.36 Under               on Certain Adjustments to an IDI’s
                                             Under the final rule, in calculating the             the final rule, the FDIC will remove the               Assessment Rate
                                          core deposit ratio 34 for large or highly               effect of participation in the PPP and                   The FDIC proposed to exclude the
                                          complex IDI, the FDIC will exclude from                 PPPLF, as proposed. In calculating the                 quarterly average amount of loans
                                          total liabilities borrowings from Federal               loss severity score under the final rule,              pledged to the PPPLF and the quarterly
                                          Reserve Banks under the PPPLF.                          the FDIC will remove the effect of PPP                 average amount of assets purchased
                                             Also as proposed, under the final rule               loans in an IDI’s loan portfolio using a               under the MMLF from the calculation of
                                          the FDIC will exclude an IDI’s reported                 waterfall approach, as proposed. Under                 the unsecured debt adjustment,
                                          borrowings from the Federal Reserve                     this approach, the FDIC will exclude                   depository institution debt adjustment,
                                          Banks under the PPPLF with a                            PPP loans from an IDI’s balance of C&I                 and the brokered deposit adjustment.
                                          remaining maturity of one year or less                  Loans. In the unlikely event that the                  These adjustments would continue to be
                                          from liabilities included in the                        outstanding balance of PPP loans                       applied to an IDI’s initial base
                                          denominator of the balance sheet                        exceeds the balance of C&I Loans, the                  assessment rate, as applicable, for
                                          liquidity ratio.35 Additionally, in                                                                            purposes of calculating the IDI’s total
                                                                                                  purchased under agreements to resell, and the
                                                                                                  market value of available-for-sale and held-to-        base assessment rate.37
                                          end, rather than requiring institutions to              maturity agency securities (excludes agency
                                          additionally report the average balance of PPP          mortgage-backed securities but includes all other        37 For certain IDIs, adjustments include the
                                          loans.                                                  agency securities issued by the U.S. Treasury, U.S.    unsecured debt adjustment and the depository
                                            33 Appendix C to subpart A of part 327 describes
                                                                                                  government agencies, and U.S. government               institution debt adjustment (DIDA). The unsecured
                                          the concentration measures, including the ratio of      sponsored enterprises) divided by the sum of           debt adjustment decreases an IDI’s total assessment
                                          higher-risk assets to tier 1 capital and reserves.      federal funds purchased and repurchase                 rate based on the ratio of its long-term unsecured
                                            34 The core deposit ratio is defined as total
                                                                                                  agreements, other borrowings (including FHLB)          debt to its assessment base. The DIDA increases an




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                                          domestic deposits excluding brokered deposits and       with a remaining maturity of one year or less, 5       IDI’s total assessment rate if it holds long-term,
                                          uninsured non-brokered time deposits divided by         percent of insured domestic deposits, and 10           unsecured debt issued by another IDI. In addition,
                                          total liabilities. See Appendix A to subpart A of 12    percent of uninsured domestic and foreign deposits.    large IDIs that meet certain criteria and new small
                                          CFR part 327.                                           Appendix A to subpart A of 12 CFR part 327.            IDIs are subject to the brokered deposit adjustment.
                                            35 The balance sheet liquidity ratio is defined as      36 Appendix D to subpart A of 12 CFR 327             The brokered deposit adjustment increases the total
                                          the sum of cash and balances due from depository        describes the calculation of the loss severity         assessment rate of large IDIs that hold significant
                                          institutions, federal funds sold and securities         measure.                                                                                          Continued




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                                          38288                 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                             As previously described, many                         the increase to its assessment base                      or its assessment base. To the extent an
                                          commenters requested that the FDIC                       attributable to participation in the                     IDI relies on existing balance sheet
                                          provide relief throughout the                            PPPLF and MMLF.39 To determine this                      liquidity, including cash and securities
                                          assessment calculations for all PPP                      offset amount, the FDIC proposed to                      to fund PPP loans, the IDI would not
                                          lending, whether funded under the                        calculate the total of the quarterly                     increase its total assets and would
                                          PPPLF or through other sources of                        average amount of assets pledged to the                  therefore not experience an increase to
                                          liquidity, including deposits. A few                     PPPLF and the quarterly average                          the assessment base as a result of its
                                          commenters expressed support for the                     amount of assets purchased under the                     participation in the PPP. An IDI that
                                          proposed modifications to these                          MMLF, multiply that amount by an IDI’s                   obtains additional funding to make PPP
                                          adjustments.                                             total base assessment rate (after                        loans, however, would increase its total
                                             After considering comments received,                  excluding the effect of participation in                 liabilities by the amount of additional
                                          and in recognition of the important role                 the MMLF and PPPLF, as proposed),                        funding and increase its total assets by
                                          IDIs play in providing liquidity to small                and subtract the resulting amount from                   the amount of PPP loans made with
                                          businesses and helping to stabilize the                  an IDI’s total assessment amount.40                      such funding, resulting in an increase in
                                          broader economy in the midst of the                         The FDIC received numerous                            its assessment base.
                                          economic disruption caused by COVID–                     comments stating that the proposed                          In recognition of the extraordinary
                                          19, as well as in recognition that some                  modifications would not completely                       steps taken by IDIs to provide liquidity
                                          banks have funded PPP loans through                      offset the impact of PPP lending on the                  to small businesses and help stabilize
                                          liabilities other than borrowings under                  assessment base. Some commenters                         the broader economy in the midst of the
                                          the PPPLF, under the final rule, the                     requested that the FDIC exclude the                      economic disruption caused by COVID–
                                          FDIC will exclude the quarter-end                        quarter-end balance of outstanding PPP                   19, and to more fully mitigate the
                                          outstanding amount of PPP loans and                      loans from the assessment base.                          deposit insurance assessment effect of
                                          the quarterly average amount of assets                      After considering the comments                        participation in the PPP, the final rule
                                          purchased under the MMLF from the                        received, and recognizing that some                      will provide an offset to an IDI’s
                                          calculation of the unsecured debt                        banks have funded PPP loans by                           assessment amount that is calculated
                                          adjustment, depository institution debt                  obtaining additional funding, such as                    using the total outstanding balance of
                                          adjustment, and the brokered deposit                     deposits or borrowings other than under                  PPP loans at quarter end and the
                                          adjustment.                                              the PPPLF, and therefore increased their                 quarterly average balance of assets
                                             While the deposit insurance                           total assets and total liabilities, under                purchased under the MMLF. Including
                                          assessment calculations typically adjust                 the final rule the FDIC will use the                     total PPP loans in the calculation of the
                                          quarter-end amounts by quarter-end                       quarter-end outstanding amount of PPP                    offset ensures that the final rule will
                                          amounts and average amounts by                           loans rather than the quarterly average                  more fully mitigate the assessment
                                          average amounts, in the interest of                      amount of assets pledged to the PPPLF                    effects of participation in PPP lending.
                                          minimizing reporting burden, the                         in calculating the offset to an IDI’s total              To the extent that an institution did not
                                          agencies are collecting only the quarter-                assessment amount. To determine this                     increase its total assets as a result of PPP
                                          end outstanding balance of PPP loans                     offset amount, the FDIC will sum the                     participation, the final rule may, for
                                          and not the average amount.                              total of the quarter-end outstanding                     some institutions, result in an
                                          Accordingly, there are a few                             balance of PPP loans and the quarterly                   assessment reduction that exceeds the
                                          modifications under this final rule for                  average amount of assets purchased                       actual increase in assessments that an
                                          which an average amount is adjusted by                   under the MMLF, multiply that amount                     institution would have experienced due
                                          the quarter-end outstanding balance of                   by an IDI’s total base assessment rate                   to participation in the PPP.
                                          PPP loans, as is the case with these three               (after excluding the effects of                             As discussed above, in the interest of
                                          adjustments to an IDI’s assessment rate.                 participation in the PPP, MMLF, and                      minimizing reporting burden, there are
                                                                                                   PPPLF, consistent with the final rule),                  a few modifications under this final rule
                                          D. Offset to Deposit Insurance                                                                                    for which an average amount is adjusted
                                          Assessment Due To Increase in the                        and subtract the resulting amount from
                                                                                                   an IDI’s total assessment amount.                        by the quarter-end outstanding balance
                                          Assessment Base Attributable to PPP                                                                               of PPP loans, as is the case with the
                                          Loans and Assets Purchased Under the                        While IDIs will report loans pledged
                                                                                                   to the PPPLF and borrowings under the                    calculation of the offset to the
                                          MMLF                                                                                                              assessment base.
                                                                                                   PPPLF starting with the June 30, 2020,
                                            Under the final rule, the FDIC will                    Call Report, it will not be possible for                    Because the FDIC proposed to
                                          provide an offset to an IDI’s total                      the FDIC to differentiate between an IDI                 calculate the offset as the sum of the
                                          assessment amount due for the increase                   that increased its total assets solely due               quarterly average amount of loans
                                          to its assessment base attributable to the               to PPP funded by additional liabilities,                 pledged to the PPPLF and the quarterly
                                          quarter-end outstanding balance of PPP                   and an IDI that used existing balance                    average of assets purchased under the
                                          loans and participation in the MMLF.38                   sheet liquidity to fund PPP loans and                    MMLF, the Board of Governors is
                                            Under the proposed rule, the FDIC                      therefore did not increase its total assets              requiring that insured branches of
                                          would have provided an offset to an                                                                               foreign banks report only these two
                                          IDI’s total assessment amount due for                       39 Under the proposed rule, the offset to the total   additional items on the FFIEC 002
                                                                                                   assessment amount due for the increase to the            starting with the report filed as of June
                                          concentrations of brokered deposits and that are         assessment base attributable to participation in the     30, 2020. Adjustments to the calculation
                                          less than well capitalized, not CAMELS composite         PPPLF and MMLF would have applied to all IDIs,
                                          1- or 2-rated, as well as new, small IDIs that are not   including new small institutions as defined in 12
                                                                                                                                                            of the assessment rate of an insured
                                          assigned to Risk Category I. See 12 CFR 327.16(e).       CFR 327.8(w), and insured U.S. branches and              branch of foreign banks to mitigate the
                                            38 Under the final rule, the offset to the total       agencies of foreign banks.                               effect of participation in the PPP,




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                                          assessment amount due for the increase to the               40 Currently, an IDI’s total assessment amount on
                                                                                                                                                            PPPLF, and MMLF are not necessary.41
                                          assessment base attributable to the quarter-end          its quarterly certified statement invoice is equal to    Under the final rule, the FDIC will
                                          outstanding balance of PPP loans and participation       the product of the institution’s assessment base
                                          in the MMLF will apply to all IDIs, including new        (calculated in accordance with 12 CFR 327.5)             provide an offset to the assessment of an
                                          small institutions as defined in 12 CFR 327.8(w),        multiplied by the institution’s assessment rate
                                          and insured U.S. branches and agencies of foreign        (calculated in accordance with 12 CFR 327.4 and            41 Insured branches are assessed for deposit

                                          banks.                                                   12 CFR 327.16). See 12 CFR 327.3(b)(1).                  insurance in accordance with 12 CFR 327.16(c).



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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                  38289

                                          insured branch of a foreign bank that is                IDI’s assessment amount under the final                (2) the PPP loans that are held by IDIs
                                          calculated by summing the quarterly                     rule are properly incorporated into the                are evenly distributed across all IDIs
                                          average amount of assets purchased                      assessment regulation provisions                       that have C&I loans, which results in a
                                          under the MMLF with either the                          governing the calculation of an IDI’s                  33 percent increase in those loans,
                                          quarterly average amount of loans                       quarterly deposit insurance assessment.                except where IDI-specific data are
                                          pledged to the PPPLF or the amount of                                                                          available, (3) 5.9 percent of PPP loans
                                                                                                  III. Expected Effects                                  held by IDIs are pledged to the PPPLF,
                                          outstanding PPP loans at the end of the
                                          quarter, based on available data.42                        To facilitate participation in the PPP              except where IDI-specific data are
                                                                                                  and use of the PPPLF and MMLF, under                   available from the Federal Reserve
                                          E. Classification of IDIs as Small, Large,              the final rule the FDIC will mitigate the              Board, (4) 100 percent of loans pledged
                                          or Highly Complex for Assessment                        deposit insurance assessment effects of                to the PPPLF are matched by borrowings
                                          Purposes                                                PPP loans, amounts borrowed under the                  from the Federal Reserve Banks with
                                             In defining IDIs for assessment                      PPPLF, and assets purchased under the                  maturities greater than one year, (5) IDIs
                                          purposes under the proposed rule, the                   MMLF. Estimating the dollar amount of                  fund the remaining 94.1 percent of PPP
                                          FDIC would have excluded from an                        assessment mitigation resulting from the               loans with additional funding,
                                          IDI’s total assets the amount of loans                  rule is difficult. Because IDIs are not yet            including deposits or secured
                                          pledged to the PPPLF and assets                         reporting the necessary data, the FDIC                 borrowings, and (6) large and highly
                                          purchased under the MMLF. Several                       does not have sufficient data on the                   complex IDIs hold approximately $30
                                          commenters specifically requested that                  distribution of loans among IDIs and                   billion in assets pledged under the
                                          the FDIC provide full credit for the                    other non-bank financial institutions                  MMLF,45 the FDIC estimates that (1)
                                          outstanding balance of PPP loans                        made under the PPP, the loan categories                quarterly deposit insurance assessments
                                          throughout the assessment calculations,                 of PPP loans held, the types of liabilities            would increase for some institutions
                                          including in the classification of an IDI               used to fund PPP lending, the extent to                absent the final rule and (2) the final
                                          as small, large, or highly complex for                  which PPP participation resulted in an                 rule could provide quarterly assessment
                                          deposit insurance assessment purposes.                  increase to an IDI’s total assets and total            relief of approximately $150 million.
                                             After considering these comments and                 liabilities, nor on the dollar volume of                 The actual effect of these programs on
                                          for the reasons described above, the                    assets purchased under the MMLF by                     deposit insurance assessments will vary
                                          FDIC will exclude the quarter-end                       IDIs. Therefore, the FDIC has estimated                depending on participation in the
                                          outstanding balance of all PPP loans,                   the potential effects of these programs                programs by IDIs and non-IDIs, the
                                          rather than only those PPP loans                        on deposit insurance assessments based                 maturity of borrowings from the Federal
                                          pledged to the PPPLF, in the                            on certain assumptions. Although this                  Reserve Banks under these programs,
                                          classification of an IDI as small, large, or            estimate is subject to considerable                    the extent of reliance on existing
                                          highly complex for assessment                           uncertainty, the FDIC estimates that                   sources of funding for PPP lending, and
                                          purposes. As a result, the FDIC will not                application of the final rule could                    the types of loans held under the PPP,
                                          reclassify a small institution as large or              provide quarterly assessment relief to                 as described above. While items on the
                                          a large institution as a highly complex                 IDIs participating in these programs                   Call Report will enable the FDIC to
                                          institution solely due to participation in              totaling approximately $150 million,                   quantify funding from the PPPLF, it is
                                          the PPPLF and MMLF programs, which                      based on the assumptions described                     not possible for the FDIC to quantify
                                          would otherwise have the effect of                      below which improve upon the                           how much an IDI’s total assets grew due
                                          expanding an IDI’s balance sheet. In                    assumptions applied in the proposal                    to PPP loans relative to other balance
                                          addition, an institution with total assets              given information provided by                          sheet changes, including increased cash
                                          between $5 billion and $10 billion,                     commenters and FDIC analysis of                        or other loans made either in response
                                          excluding the amount of PPP loans and                   updated data published by the SBA on                   to the economic disruption caused by
                                          assets purchased under the MMLF, may                    the PPP and Federal Reserve Board on                   COVID–19 or that would have otherwise
                                          request that the FDIC determine its                     the PPPLF and MMLF. Because PPP
                                          assessment rate as a large institution.43               loans must be issued by June 30, 2020,                 Paycheck Protection Program. The FDIC assumes all
                                                                                                  and because the FDIC expects that                      the authorized funds will be distributed and
                                          F. Other Conforming Amendments to                                                                              roughly 90 percent will be held by IDIs.
                                          the Assessment Regulations                              eligible IDIs will begin receiving PPP                    45 These assumptions reflect current participation
                                                                                                  loan forgiveness reimbursement from                    in the PPP and PPPLF and that all authorized funds
                                             Under the final rule, the FDIC will                  the SBA, the FDIC expects that the                     under the PPP will be distributed, based on data
                                          make conforming amendments to the                       amount of assessment relief provided                   published by the SBA and Federal Reserve Board.
                                          FDIC’s assessment regulations to                                                                               These assumptions use transaction-level data
                                                                                                  under this final rule will decline in                  published by the Federal Reserve Board, SBA data
                                          effectuate the modifications described                  subsequent quarters.                                   to estimate the participation in the PPP program of
                                          above and consistent with the proposed                     The FDIC anticipates that PPP loans                 nonbank lenders including CDFI funds, CDCs,
                                          rule. These conforming amendments                       will be held by both IDIs and non-IDIs,                Microlenders, Farm Credit Lenders, and FinTechs.
                                          will ensure that the modifications to an                                                                       See Paycheck Protection Program (PPP) Report:
                                                                                                  and that IDIs will fund PPP loans                      Approvals through 06/06/2020, Small Business
                                          IDI’s assessment rate and the offset to an              through growth in liabilities, including               Administration, available at: https://www.sba.gov/
                                                                                                  through additional deposits, borrowings                sites/default/files/2020-06/PPP_Report_Public_
                                            42 Through the Board of Governors, the FDIC
                                                                                                  from Federal Reserve Banks under the                   200606%20FINAL_-508.pdf; Factors Affecting
                                          anticipates revising the reporting of the quarterly                                                            Reserve Balances, Federal Reserve statistical release
                                          average amount of loans pledged to the PPPLF and        PPPLF, and other secured borrowings,                   H.4.1, as of June 11, 2020, available at: https://
                                          instead requiring insured branches of foreign banks     although the rate of IDI participation in              www.federalreserve.gov/releases/h41/current/;
                                          to report the outstanding balance of PPP loans at       the PPP and PPPLF is uncertain.                        Board of Governors of the Federal Reserve System,
                                          quarter-end, beginning as of September 30, 2020.           Based on Call Report data as of March               Money Market Mutual Fund Liquidity Facility, as




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                                          For purposes of determining the deposit insurance                                                              of June 10, 2020, available at: https://
                                          assessment amount for an insured branch of a
                                                                                                  31, 2020, and assuming that (1) $600
                                                                                                                                                         fred.stlouisfed.org/series/H41RESPPALDBNWW;
                                          foreign bank as of June 30, 2020, an insured branch     billion of PPP loans are held by IDIs,44               and Board of Governors of the Federal Reserve
                                          additionally may provide to the FDIC certified                                                                 System, PPPLF Transaction-specific Disclosures as
                                          information on the amount of outstanding PPP              44 Section 101(a)(1) of the Paycheck Protection      of May 15, 2020, available at: https://
                                          loans at the end of the quarter.                        Program and Health Care Enhancement Act, Public        www.federalreserve.gov/publications/files/PPPLF-
                                            43 See 12 CFR 327.16(f).                              Law 116–139, authorizes $659 billion for the           transaction-specific-disclosures-5-15-20.xlsx.



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                                          38290                 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          been made in the normal course of                        An immediate effective date and an                      2020, with a payment due date of
                                          business. For example, to the extent an                  application date of April 1, 2020, will                 September 30, 2020.
                                          IDI relies on existing balance sheet                     enable the FDIC to provide the relief
                                                                                                                                                           B. Regulatory Flexibility Act
                                          liquidity including cash and securities                  contemplated in this rulemaking as soon
                                          to fund PPP lending, the IDI would not                   as practicable, starting with the second                   The Regulatory Flexibility Act (RFA),
                                          experience an increase in liabilities and                quarter of 2020, and provide certainty to               5 U.S.C. 601 et seq., generally requires
                                          would therefore not experience an                        IDIs regarding the assessment effects of                an agency, in connection with a final
                                          increase to the assessment base as a                     participating in the PPP, PPPLF, or                     rule, to prepare and make available for
                                          result of its participation in PPP                       MMLF for the second quarter of 2020,                    public comment a final regulatory
                                          lending. Accordingly, the assumption                     which is the first assessment quarter in                flexibility analysis that describes the
                                          that IDIs will rely entirely on additional               which the assessments will be affected.                 impact of a final rule on small entities.50
                                          funding for PPP lending could reduce                                                                             However, a regulatory flexibility
                                                                                                   V. Administrative Law Matters                           analysis is not required if the agency
                                          quarterly assessments by more than they
                                          will increase due to participation in PPP                A. Administrative Procedure Act                         certifies that the rule will not have a
                                          lending, as some IDIs may rely on                                                                                significant economic impact on a
                                          existing balance sheet liquidity to fund                    Under the Administrative Procedure                   substantial number of small entities.
                                          PPP lending.                                             Act (APA),48 ‘‘[t]he required publication               The Small Business Administration
                                                                                                   or service of a substantive rule shall be               (SBA) has defined ‘‘small entities’’ to
                                          IV. Effective Date of the Final Rule                     made not less than 30 days before its                   include banking organizations with total
                                             As stated above, in response to recent                effective date, except as otherwise                     assets of less than or equal to $600
                                          events which have significantly and                      provided by the agency for good cause                   million.51 Generally, the FDIC considers
                                          adversely impacted global financial                      found and published with the rule.’’ 49                 a significant effect to be a quantified
                                          markets along with the spread of                         Under this rulemaking, the amendments                   effect in excess of 5 percent of total
                                          COVID–19, which has slowed economic                      to the FDIC’s deposit insurance                         annual salaries and benefits per
                                          activity in many countries, including                    assessment regulations would be                         institution, or 2.5 percent of total non-
                                          the United States, the agencies moved                    effective upon publication of the final                 interest expenses. The FDIC believes
                                          quickly due to exigent circumstances                     rule in the Federal Register. The FDIC                  that effects in excess of these thresholds
                                          and issued two interim final rules to                    finds good cause that the publication of                typically represent significant effects for
                                          allow banking organizations to                           this final rule can be effective                        FDIC-insured institutions. Certain types
                                          neutralize the regulatory capital effects                immediately in order to fully effectuate                of rules, such as rules of particular
                                          of purchasing assets under the MMLF                      the intent of ensuring that IDIs benefit                applicability relating to rates or
                                          and loans pledged to the PPPLF. Since                    from the mitigation effects to their                    corporate or financial structures, or
                                          the implementation of the PPP, PPPLF,                    deposit insurance assessments as soon                   practices relating to such rates or
                                          and MMLF, the FDIC has observed                          as practicable, and to provide IDIs with                structures, are expressly excluded from
                                          uncertainty from the public and the                      certainty regarding the assessment                      the definition of ‘‘rule’’ for purposes of
                                          banking industry and wants to provide                    effects of participating in the PPP,                    the RFA.52 The final rule relates directly
                                          clarity on how, if at all, these programs                PPPLF, or MMLF for the second quarter                   to the rates imposed on IDIs for deposit
                                          would affect the assessments of IDIs                     of 2020, which is the first assessment                  insurance and to the deposit insurance
                                          which participate in these programs.                     quarter in which the assessments will be                assessment system that measures risk
                                          Because PPP loans must be issued by                      affected.                                               and determines each established small
                                          June 30, 2020, the full assessment                                                                               bank’s assessment rate and is, therefore,
                                                                                                      As explained in the Supplementary                    not subject to the RFA. Nonetheless, the
                                          impact of these programs will first occur                Information section and in the proposed
                                          in the second quarterly assessment                                                                               FDIC is voluntarily presenting
                                                                                                   rule, the FDIC expects that an IDI that                 information in this RFA section.
                                          period. Congress has also given                          participates in either the PPP, the                        Based on quarterly regulatory report
                                          indications that implementation of these                 PPPLF, or the MMLF program could be                     data as of March 31, 2020, the FDIC
                                          programs is an urgent policy matter,                     subject to increased deposit insurance                  insures 5,125 depository institutions,53
                                          instructing the SBA to issue regulations                 assessments, beginning with the second                  of which 3,771 are defined as small
                                          for the PPP within 15 days of the                        quarter of 2020. The FDIC invoices for                  entities by the terms of the RFA.54 The
                                          CARES Act’s enactment.46                                 quarterly deposit insurance assessments                 final rule applies to all FDIC-insured
                                             The final rule will take effect                       in arrears. As a result, invoices for the
                                          immediately upon publication in the                      second quarterly assessment period of                     50 5 U.S.C. 601 et seq.
                                          Federal Register with an application                     2020 (i.e., April 1—June 30) would be                      51 The SBA defines a small banking organization
                                          date of April 1, 2020, and changes made                  made available to IDIs in September                     as having $600 million or less in assets, where an
                                          as a result of this rule will be reflected                                                                       organization’s ‘‘assets are determined by averaging
                                          in the invoices for deposit insurance                                                                            the assets reported on its four quarterly financial
                                                                                                   of 2020 (i.e., April 1–June 30) will be calculated on   statements for the preceding year.’’ See 13 CFR
                                          assessments due September 30, 2020.47                    the basis of Call Report data as of June 30, 2020,      121.201 (as amended, effective August 19, 2019). In
                                                                                                   with a payment due date of September 30, 2020.          its determination, the SBA ‘‘counts the receipts,
                                             46 See CARES Act, § 1114. Public Law 116–142          Furthermore, even if the effects of the final rule      employees, or other measure of size of the concern
                                          (June 05, 2020). The SBA subsequently issued an          were retroactive, a rule is impermissibly retroactive   whose size is at issue and all of its domestic and
                                          interim final rule implementing sections 1102 and        only when it ‘‘takes away or impairs vested rights      foreign affiliates.’’ 13 CFR 121.103. Following these
                                          1106 of the CARES Act. See 85 FR 20811 (April 15,        acquired under existing law, or creates a new           regulations, the FDIC uses a covered entity’s
                                          2020). On June 5, 2020, the PPP Flexibility Act was      obligation, imposes a new duty, or attaches a new       affiliated and acquired assets, averaged over the
                                          signed into law, amending key provisions of the          disability in respect to transactions or                preceding four quarters, to determine whether the
                                          CARES Act. The SBA issued an interim final rule          considerations already past.’’ See Nat’l Mining         covered entity is ‘‘small’’ for the purposes of RFA.




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                                          implementing these provisions. See 85 FR 36308           Ass’n v. Dep’t of Labor, 292 F.3d 849, 859 (D.C. Cir.      52 5 U.S.C. 601.

                                          (June 16, 2020).                                         2002) (quoting Nat’l Mining Ass’n v. Dep’t of              53 FDIC Call Report data, as of March 31, 2020.
                                             47 The application date of April 1, 2020, is          Interior, 177 F.3d 1, 8 (D.C. Cir. 1999)) (internal        54 The FDIC does not have data to identify small

                                          permissible because the effects of the final rule will   quotations omitted). This final rule does none of       entities as of March 2020. This count includes small
                                          occur after its publication. The assessment amount       those things.                                           entities as of December 31, 2019, as well as small
                                                                                                     48 5 U.S.C. 553.
                                          owed on an IDI’s quarterly certified statement                                                                   entities that opened between December 2019 and
                                          invoice for the second quarterly assessment period         49 5 U.S.C. 553(d).                                   March 2020.



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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                             38291

                                          institutions, but is expected to affect                 depending on IDIs’ participation in the                   Currency OMB No. 1557–0081; Board of
                                          only those institutions that participate                PPP and Federal Reserve Facilities, the                   Governors OMB No. 7100–0036; and
                                          in the PPP, PPPLF, and MMLF. The                        maturity of borrowings from the Federal                   FDIC OMB No. 3064–0052. The final
                                          FDIC does not presently have access to                  Reserve Banks under these programs,                       rule also affects the Report of Assets and
                                          information that would enable it to                     the extent of reliance on existing                        Liabilities of U.S. Branches and
                                          identify which institutions are                         sources of funding for PPP lending, and                   Agencies of Foreign Banks (FFIEC 002),
                                          participating in these programs and                     the types of loans held under the PPP.                    which the Federal Reserve System
                                          lending facilities.                                                                                               collects and processes on behalf of the
                                            As previously discussed, to facilitate                C. Riegle Community Development and
                                                                                                  Regulatory Improvement Act                                three agencies (Board of Governors OMB
                                          participation in the PPP and use of the                                                                           No. 7100–0032). Submissions were
                                          PPPLF and MMLF, the final rule                             Section 302 of the Riegle Community                    made by the agencies to OMB for their
                                          mitigates the deposit insurance                         Development and Regulatory                                respective information collections. The
                                          assessment effects of PPP loans,                        Improvement Act (RCDRIA) requires                         changes to the Call Report, the Report of
                                          borrowings under the PPPLF, and assets                  that the Federal banking agencies,                        Assets and Liabilities of U.S. Branches
                                          purchased under the MMLF. Therefore,                    including the FDIC, in determining the                    and Agencies of Foreign Banks, and
                                          the FDIC estimated the potential effects                effective date and administrative                         their respective instructions, have been
                                          of these programs on deposit insurance                  compliance requirements of new                            addressed in a separate Federal Register
                                          assessments based on certain                            regulations that impose additional                        notice or notices.
                                          assumptions. Based on Call Report data                  reporting, disclosure, or other
                                          as of March 31, 2020, assuming that (1)                 requirements on IDIs, consider,                           E. Plain Language
                                          $600 billion of PPP loans are held by                   consistent with principles of safety and
                                                                                                  soundness and the public interest, any                      Section 722 of the Gramm-Leach-
                                          IDIs,55 (2) the PPP loans that are held by
                                                                                                  administrative burdens that such                          Bliley Act 59 requires the Federal
                                          IDIs are evenly distributed across all
                                                                                                  regulations would place on depository                     banking agencies to use plain language
                                          IDIs that have C&I loans, which results
                                                                                                  institutions, including small depository                  in all proposed and final rulemakings
                                          in a 33 percent increase in those loans,
                                                                                                  institutions, and customers of                            published in the Federal Register after
                                          except where IDI-specific data are
                                                                                                  depository institutions, as well as the                   January 1, 2000. The FDIC invited
                                          available, (3) 5.9 percent of PPP loans
                                                                                                  benefits of such regulations. In addition,                comment regarding the use of plain
                                          held by IDIs are pledged to the PPPLF,
                                                                                                  section 302(b) of RCDRIA requires new                     language, but did not receive any
                                          except where IDI-specific data are
                                          available, (4) 100 percent of loans                     regulations and amendments to                             comments on this topic.
                                          pledged to the PPPLF are matched by                     regulations that impose additional                        F. The Congressional Review Act
                                          borrowings from the Federal Reserve                     reporting, disclosures, or other new
                                          Banks with maturities greater than one                  requirements on IDIs generally to take                       For purposes of Congressional Review
                                          year,56 and (5) IDIs fund the remaining                 effect on the first day of a calendar                     Act, the OMB makes a determination as
                                          94.1 percent of PPP loans with                          quarter that begins on or after the date                  to whether a final rule constitutes a
                                          additional funding, including deposits                  on which the regulations are published                    ‘‘major’’ rule.60 The OMB has
                                          or secured borrowings, the FDIC                         in final form, with certain exceptions,                   determined that the final rule is a major
                                          estimates that the final rule will save                 including for good cause.57                               rule for purposes of the Congressional
                                          small IDIs approximately $10 million in                    The amendments to the FDIC’s                           Review Act. If a rule is deemed a ‘‘major
                                          quarterly deposit insurance                             deposit insurance assessment                              rule’’ by the OMB, the Congressional
                                          assessments.                                            regulations under this final rule do not                  Review Act generally provides that the
                                            The actual effect of these programs on                impose additional reporting,                              rule may not take effect until at least 60
                                          deposit insurance assessments will vary                 disclosures, or other new requirements.                   days following its publication.61 The
                                                                                                  Nonetheless, the FDIC considered the                      Congressional Review Act defines a
                                             55 Section 101(a)(1) of the Paycheck Protection      requirements of RCDRIA when                               ‘‘major rule’’ as any rule that the
                                          Program and Health Care Enhancement Act, Pub. L.        finalizing this rule with an immediate                    Administrator of the Office of
                                          116–139, authorizes $659 billion for the Paycheck       effective date. The FDIC invited
                                          Protection Program. The FDIC assumes that all the
                                                                                                                                                            Information and Regulatory Affairs of
                                          authorized funds will be distributed and roughly 90     comments regarding the application of                     the OMB finds has resulted in or is
                                          percent will be held by IDIs.                           RCDRIA to the final rule, but did not                     likely to result in—(A) an annual effect
                                             56 These assumptions reflect current participation
                                                                                                  receive comments on this topic.                           on the economy of $100,000,000 or
                                          in the PPP and PPPLF and that all the authorized
                                          funds under the PPP will be distributed, based on       D. Paperwork Reduction Act                                more; (B) a major increase in costs or
                                          data published by the SBA and Federal Reserve                                                                     prices for consumers, individual
                                          Board. These assumptions use SBA data to estimate         The Paperwork Reduction Act of 1995                     industries, Federal, State, or Local
                                          the participation in the PPP program of nonbank         (PRA) states that no agency may                           government agencies or geographic
                                          lenders including CDFI funds, CDCs, Microlenders,       conduct or sponsor, nor is the                            regions, or (C) significant adverse effects
                                          Farm Credit Lenders, and FinTechs. See Paycheck         respondent required to respond to, an
                                          Protection Program (PPP) Report: Approvals from                                                                   on competition, employment,
                                          through 06/06/2020, Small Business                      information collection unless it displays                 investment, productivity, innovation, or
                                          Administration, available at: https://www.sba.gov/      a currently valid OMB control                             on the ability of United States-based
                                          sites/default/files/2020-06/PPP_Report_Public_          number.58 The final rule affects the                      enterprises to compete with foreign-
                                          200606%20FINAL_-508.pdf; Factors Affecting              agencies’ current information
                                          Reserve Balances, Federal Reserve statistical release                                                             based enterprises in domestic and
                                          H.4.1, as of June 11, 2020, available at: https://      collections for the Call Report (FFIEC                    export markets.62 As required by the
                                          www.federalreserve.gov/releases/h41/current/, and       031, FFIEC 041, and FFIEC 051). The                       Congressional Review Act, the FDIC
                                          Board of Governors of the Federal Reserve System,       agencies’ OMB control numbers for the                     will submit the final rule and other
                                          Money Market Mutual Fund Liquidity Facility, as         Call Reports are: Comptroller of the




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                                          of June 10, 2020, available at: https://                                                                          appropriate reports to Congress and the
                                          fred.stlouisfed.org/series/H41RESPPALDBNWW;
                                                                                                     57 5 U.S.C. 553(b)(B), 5 U.S.C. 553(d), 5 U.S.C. 601
                                          Board of Governors of the Federal Reserve System,                                                                  59 12 U.S.C. 4809.
                                          PPPLF Transaction-specific Disclosures as of May        et seq., 5 U.S.C. 801 et seq., 5 U.S.C. 801(a)(3), 5
                                                                                                                                                             60 5 U.S.C. 801 et seq.
                                          15, 2020, available at: https://                        U.S.C. 804(2), 5 U.S.C. 808(2), 12 U.S.C. 4802(a), 12
                                                                                                  U.S.C. 4802(b).                                            61 5 U.S.C. 801(a)(3).
                                          www.federalreserve.gov/publications/files/PPPLF-
                                          transaction-specific-disclosures-5-15-20.xlsx.             58 4 U.S.C. 3501–3521.                                  62 5 U.S.C. 804(2).




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                                          38292                     Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          Government Accountability Office for                         (b) * * *                                            institution. If, after December 31, 2006,
                                          review.                                                      (1) Quarterly certified statement                    an institution classified as small under
                                             Section 808 of the Congressional                        invoice. Starting with the first                       paragraph (e) of this section reports
                                          Review Act provides that any rule as to                    assessment period of 2007, no later than               assets of $10 billion or more in its
                                          which an agency for good cause finds                       15 days prior to the payment date                      quarterly reports of condition for four
                                          (and incorporates the finding and a brief                  specified in paragraph (b)(2) of this                  consecutive quarters, excluding assets
                                          statement of reasons therefor in the rule                  section, the Corporation will provide to               as described in § 327.17(e), the FDIC
                                          issued) that notice and public procedure                   each insured depository institution a                  will reclassify the institution as large
                                          thereon are impracticable, unnecessary,                    quarterly certified statement invoice                  beginning the following quarter.
                                          or contrary to the public interest, shall                  showing the amount of the assessment                      (g) * * *
                                          take effect at such time as the Federal                    payment due from the institution for the                  (1) A highly complex institution is:
                                          agency promulgating the rule                               prior quarter (net of credits or                          (i) An insured depository institution
                                          determines.63 Although OMB has                             dividends, if any), and the computation                (excluding a credit card bank) that has
                                          determined that this is a major rule for                   of that amount. Subject to paragraph (e)               had $50 billion or more in total assets
                                          purposes of the Congressional review                       of this section and § 327.17, the                      for at least four consecutive quarters,
                                          Act, and hence would ordinarily be                         invoiced amount on the quarterly                       excluding assets as described in
                                          subject to a 60-day delayed effective                      certified statement invoice shall be the               § 327.17(e), that is controlled by a U.S.
                                          date, the FDIC believes there is good                      product of the following: The                          parent holding company that has had
                                          cause for an immediate effective date. In                  assessment base of the institution for the             $500 billion or more in total assets for
                                          this case, the FDIC provided notice and                    prior quarter computed in accordance                   four consecutive quarters, or controlled
                                          accepted comment, as required by                           with § 327.5 multiplied by the                         by one or more intermediate U.S. parent
                                          section 7 of the FDI Act, but further                      institution’s rate for that prior quarter as           holding companies that are controlled
                                          public procedure and the attendant                         assigned to the institution pursuant to                by a U.S. holding company that has had
                                          delay would be contrary to the public                      §§ 327.4(a) and 327.16.                                $500 billion or more in assets for four
                                          interest.64                                                *     *     *     *      *                             consecutive quarters; or
                                             The FDIC believes that, under section                   ■ 3. Amend § 327.8 by revising                            (ii) A processing bank or trust
                                          808 of the Congressional Review Act,                       paragraphs (e), (f), and (g)(1) to read as             company.
                                          good cause exists for the final rule to                    follows:                                               *       *    *      *    *
                                          become effective without further public                                                                           ■ 4. Amend § 327.16 by adding
                                                                                                     § 327.8    Definitions.
                                          procedure and immediately upon its                                                                                introductory text and revising paragraph
                                          filing for publication, as delaying the                    *      *     *     *     *                             (f)(1) to read as follows:
                                          effective date would be contrary to the                       (e) Small institution. (1) An insured
                                          public interest. In particular, by                         depository institution with assets of less             § 327.16 Assessment pricing methods—
                                          providing for an immediate effective                       than $10 billion, excluding assets as                  beginning the first assessment period after
                                                                                                     described in § 327.17(e), as of December               June 30, 2016, where the reserve ratio of the
                                          date for the final rule, the intent of                                                                            DIF as of the end of the prior assessment
                                          ensuring that IDIs benefit from the                        31, 2006, and an insured branch of a
                                                                                                     foreign institution shall be classified as             period has reached or exceeded 1.15
                                          mitigation effects to their deposit                                                                               percent.
                                          insurance assessments starting with the                    a small institution.
                                                                                                        (2) Except as provided in paragraph                    Subject to the modifications described
                                          second quarter of 2020, which is the                                                                              in § 327.17, the following pricing
                                                                                                     (e)(3) of this section and § 327.17(e), if,
                                          first assessment quarter in which the                                                                             methods shall apply beginning in the
                                                                                                     after December 31, 2006, an institution
                                          assessments will be affected, and will                                                                            first assessment period after June 30,
                                                                                                     classified as large under paragraph (f) of
                                          thereby provide IDIs with certainty                                                                               2016, where the reserve ratio of the DIF
                                                                                                     this section (other than an institution
                                          regarding the assessment effects of                                                                               as of the end of the prior assessment
                                                                                                     classified as large for purposes of
                                          participating in the PPP, PPPLF, or                                                                               period has reached or exceeded 1.15
                                                                                                     §§ 327.9(e) and 327.16(f)) reports assets
                                          MMLF.                                                                                                             percent, and for all subsequent
                                                                                                     of less than $10 billion in its quarterly
                                          List of Subjects in 12 CFR Part 327                        reports of condition for four consecutive              assessment periods.
                                            Bank deposit insurance, Banks,                           quarters, excluding assets as described                *      *     *     *     *
                                          banking, Savings associations.                             in § 327.17(e), the FDIC will reclassify                  (f) * * *
                                                                                                     the institution as small beginning the                    (1) Procedure. Any small institution
                                          Authority and Issuance                                     following quarter.                                     with assets of between $5 billion and
                                            For the reasons stated above, the                           (3) An insured depository institution               $10 billion, excluding assets as
                                          Federal Deposit Insurance Corporation                      that elects to use the community bank                  described in § 327.17(e), may request
                                          amends 12 CFR part 327 as follows:                         leverage ratio framework under 12 CFR                  that the FDIC determine its assessment
                                                                                                     3.12(a)(3), 12 CFR 217.12(a)(3), or 12                 rate as a large institution. The FDIC will
                                          PART 327—ASSESSMENTS                                       CFR 324.12(a)(3), shall be classified as               consider such a request provided that it
                                                                                                     a small institution, even if that                      has sufficient information to do so. Any
                                          ■ 1. The authority citation for part 327                   institution otherwise would be                         such request must be made to the FDIC’s
                                          is revised to read as follows:                             classified as a large institution under                Division of Insurance and Research.
                                            Authority: 12 U.S.C. 1813, 1815, 1817–19,                paragraph (f) of this section.                         Any approved change will become
                                          1821.                                                         (f) Large institution. An institution               effective within one year from the date
                                          ■ 2. Amend § 327.3 by revising
                                                                                                     classified as large for purposes of                    of the request. If an institution whose
                                          paragraph (b)(1) to read as follows:                       §§ 327.9(e) and 327.16(f) or an insured                request has been granted subsequently




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                                                                                                     depository institution with assets of $10              reports assets of less than $5 billion in
                                          § 327.3      Payment of assessments.                       billion or more, excluding assets as                   its report of condition for four
                                          *        *      *         *    *                           described in § 327.17(e), as of December               consecutive quarters, excluding assets
                                                                                                     31, 2006 (other than an insured branch                 as described in § 327.17(e), the
                                              63 5 U.S.C. 808(2).                                    of a foreign bank or a highly complex                  institution shall be deemed a small
                                              64 See 12 U.S.C. 1817(b)(1)(F).                        institution) shall be classified as a large            institution for assessment purposes.


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                                                               Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                         38293

                                          ■ 5. Add § 327.17 to read as follows:       beginning April 1, 2020, the FDIC will                             subpart, when calculating the loss
                                                                                      take the following actions when                                    severity measure described under
                                          § 327.17 Mitigating the Deposit Insurance   calculating the assessment rate for large                          appendix A to this subpart, the FDIC
                                          Assessment Effect of Participation in the
                                          Money Market Mutual Fund Liquidity
                                                                                      institutions and highly complex                                    will exclude:
                                          Facility, the Paycheck Protection Program   institutions under § 327.16:                                         (i) The total outstanding balance of
                                          Liquidity Facility, and the Paycheck           (1) Exclusion of Paycheck Protection                            borrowings from the Federal Reserve
                                          Protection Program.                         Program loans from average short-term                              Banks under the Paycheck Protection
                                             (a) Mitigating the assessment effects of funding ratio, core earnings ratio,                                Program Liquidity Facility, as reported
                                          loans provided under the Paycheck           growth-adjusted portfolio concentration                            on the Consolidated Report of Condition
                                          Protection Program for established small measure, and trading asset ratio. As                                  and Income, from short- and long-term
                                                                                      described in appendix E of this subpart,                           secured borrowings, as appropriate; and
                                          institutions. Applicable beginning April
                                                                                      the FDIC will exclude the outstanding                                (ii) The outstanding balance of loans
                                          1, 2020, the FDIC will take the following
                                                                                      balance of loans provided under the                                provided under the Paycheck Protection
                                          actions when calculating the assessment                                                                        Program, as reported on the
                                                                                      Paycheck Protection Program, as
                                          rate for established small institutions                                                                        Consolidated Report of Condition and
                                                                                      reported on the Consolidated Report of
                                          under § 327.16:                                                                                                Income, from an institution’s balance of
                                                                                      Condition and Income, from the
                                             (1) Exclusion of loans provided under                                                                       commercial and industrial loans. To the
                                                                                      calculation of the average short-term
                                          the Paycheck Protection Program from                                                                           extent that the outstanding balance of
                                                                                      funding ratio, the core earnings ratio,
                                          net income before taxes ratio,                                                                                 loans provided under the Paycheck
                                                                                      the growth-adjusted portfolio
                                          nonperforming loans and leases ratio,                                                                          Protection Program exceeds an
                                                                                      concentration measure, and the trading
                                          other real estate owned ratio, brokered                                                                        institution’s balance of commercial and
                                                                                      asset ratio.
                                          deposit ratio, and one-year asset growth       (2) Exclusion of Paycheck Protection                            industrial loans, the FDIC will exclude
                                          measure. As described in appendix E to Program Liquidity Facility borrowings                                   any remaining balance from all other
                                          this subpart, the FDIC will exclude the     from core deposit ratio. As described in                           loans, up to the total amount of all other
                                          outstanding balance of loans provided       appendix E of this subpart, the FDIC                               loans, followed by agricultural loans, up
                                          under the Paycheck Protection Program, will exclude the total outstanding                                      to the total amount of agricultural loans,
                                          as reported on the Consolidated Report      balance of borrowings from the Federal                             as reported on the Consolidated Report
                                          of Condition and Income, from the total Reserve Banks under the Paycheck                                       of Condition and Income. To the extent
                                          assets in the calculation of the following Protection Program Liquidity Facility, as                           that an institution’s outstanding balance
                                          risk measures: Net income before taxes      reported on the Consolidated Report of                             of loans provided under the Paycheck
                                          ratio, the nonperforming loans and          Condition and Income, from the                                     Protection Program exceeds its
                                          leases ratio, the other real estate owned   calculation of the core deposit ratio.                             borrowings from the Federal Reserve
                                          ratio, the brokered deposit ratio, and the     (3) Exclusion of Paycheck Protection                            Banks under the Paycheck Protection
                                          one-year asset growth measure, which        Program Liquidity Facility borrowings                              Program Liquidity Facility, the FDIC
                                          are described in § 327.16(a)(1)(ii)(A).     from balance sheet liquidity ratio. As                             will add the amount of outstanding
                                             (2) Exclusion of loans provided under described in appendix E to this subpart,                              loans provided under the Paycheck
                                          the Paycheck Protection Program from        when calculating the balance sheet                                 Protection Program in excess of
                                          Loan Mix Index. As described in             liquidity measure described under                                  borrowings under the Paycheck
                                          appendix E to this subpart A, when          appendix A to this subpart, the FDIC                               Protection Program Liquidity Facility to
                                          calculating the loan mix index              will:                                                              cash.
                                          described in § 327.16(a)(1)(ii)(B), the        (i) Include the outstanding balance of                            (c) Mitigating the effects of loans
                                          FDIC will exclude:                          loans provided under the Paycheck                                  provided under the Paycheck Protection
                                             (i) The outstanding balance of loans     Protection Program that exceed total                               Program and assets purchased under
                                          provided under the Paycheck Protection borrowings from the Federal Reserve                                     the Money Market Mutual Fund
                                          Program, as reported on the                 Banks under the Paycheck Protection                                Liquidity Facility on the unsecured
                                          Consolidated Report of Condition and        Program Liquidity Facility, as reported                            adjustment, depository institution debt
                                          Income, from the total assets; and          on the Consolidated Report of Condition                            adjustment, and the brokered deposit
                                             (ii) The outstanding balance loans       and Income, in the amount of highly                                adjustment to an insured depository
                                          provided under the Paycheck Protection liquid assets until September 30, 2020,                                 institution’s assessment rate. As
                                          Program, as reported on the                 or, if the Board of Governors of the                               described in appendix E to this subpart,
                                          Consolidated Report of Condition and        Federal Reserve System and the                                     when calculating an insured depository
                                          Income, from an established small           Secretary of the Treasury determine to                             institution’s unsecured debt adjustment,
                                          institution’s balance of commercial and     extend the Paycheck Protection Program                             depository institution debt adjustment,
                                          industrial loans. To the extent that the    Liquidity Facility, until such date of                             or the brokered deposit adjustment
                                          outstanding balance of loans provided       extension; and                                                     described in § 327.16(e), as applicable,
                                          under the Paycheck Protection Program          (ii) Exclude the outstanding balance                            the FDIC will exclude the outstanding
                                          exceeds an established small                of borrowings from the Federal Reserve                             balance of loans provided under the
                                          institution’s balance of commercial and     Banks under the Paycheck Protection                                Paycheck Protection Program and the
                                          industrial loans, as reported on the        Program Liquidity Facility with a                                  quarterly average amount of assets
                                          Consolidated Report of Condition and        remaining maturity of one year or less                             purchased under the Money Market
                                          Income, the FDIC will exclude any           from other borrowings with a remaining                             Mutual Fund Liquidity Facility, both as
                                          remaining balance of these loans from       maturity of one year or less, both as                              reported on the Consolidated Report of
                                          the balance of agricultural loans, up to    reported on the Consolidated Report of                             Condition and Income.




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                                          the amount of agricultural loans, in the    Condition and Income. (4) Exclusion of                               (d) Mitigating the effects on the
                                          calculation of the loan mix index.          loans provided under the Paycheck                                  assessment base attributable to loans
                                             (b) Mitigating the assessment effects    Protection Program and Paycheck                                    provided under the Paycheck Protection
                                          of loans provided under the Paycheck        Protection Program Liquidity Facility                              Program and participation in the Money
                                          Protection Program for large or highly      borrowings from loss severity measure.                             Market Mutual Fund Liquidity Facility.
                                          complex institutions. Applicable            As described in appendix E to this                                 As described in appendix E to this


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                                          38294                       Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          subpart, when calculating an insured                                   FDIC, and the quarterly average amount                            of Condition and Income, may request
                                          depository institution’s quarterly                                     of assets purchased under the Money                               that the FDIC determine its assessment
                                          deposit insurance assessment payment                                   Market Mutual Fund Liquidity Facility,                            rate as a large institution under
                                          due under this part, the FDIC will                                     as reported in the Report of Assets and                           § 327.16(f).
                                          provide an offset to an institution’s                                  Liabilities of U.S. Branches and                                    (f) Definitions. For the purposes of
                                          assessment for the increase to its                                     Agencies of Foreign Banks, and                                    this section:
                                          assessment base attributable to                                        multiply the sum by an institution’s                                 (1) Paycheck Protection Program. The
                                          participation in the Money Market                                      total base assessment rate, as calculated                         term ‘‘Paycheck Protection Program’’
                                          Mutual Fund Liquidity Facility and                                     under § 327.16.                                                   means the program of that name that
                                          loans provided under the Paycheck                                        (2) Calculation of assessment amount
                                                                                                                                                                                   was created in section 1102 of the
                                          Protection Program.                                                    due. The FDIC will subtract the offset
                                                                                                                                                                                   Coronavirus Aid, Relief, and Economic
                                            (1) Calculation of offset amount. (i) To                             amount described in § 327.17(d)(1) from
                                                                                                                                                                                   Security Act.
                                          determine the offset amount, the FDIC                                  an insured depository institution’s total
                                          will take the sum of the outstanding                                   assessment amount, consistent with                                   (2) Paycheck Protection Program
                                          balance of loans provided under the                                    § 327.3(b)(1).                                                    Liquidity Facility. The term ‘‘Paycheck
                                          Paycheck Protection Program and the                                      (e) Mitigating the effects of loans                             Protection Program Liquidity Facility’’
                                          quarterly average amount of assets                                     provided under the Paycheck Protection                            means the program of that name that
                                          purchased under the Money Market                                       Program and assets purchased under                                was announced by the Board of
                                          Mutual Fund Liquidity Facility, both as                                the Money Market Mutual Fund                                      Governors of the Federal Reserve
                                          reported on the Consolidated Report of                                 Liquidity Facility on the classification of                       System on April 9, 2020, and renamed
                                          Condition and Income, and multiply the                                 insured depository institutions as small,                         as such on April 30, 2020.
                                          sum by an institution’s total base                                     large, or highly complex for deposit                                 (3) Money Market Mutual Fund
                                          assessment rate, as calculated under                                   insurance purposes. When classifying                              Liquidity Facility. The term ‘‘Money
                                          § 327.16, including any adjustments                                    an insured depository institution as                              Market Mutual Fund Liquidity Facility’’
                                          under § 327.16(e).                                                     small, large, or complex for assessment                           means the program of that name
                                            (ii) To the extent that an institution                               purposes under § 327.8, the FDIC will                             announced by the Board of Governors of
                                          does not report the outstanding balance                                exclude from an institution’s total assets                        the Federal Reserve System on March
                                          of loans provided under the Paycheck                                   the outstanding balance of loans                                  18, 2020.
                                          Protection Program, such as in an                                      provided under the Paycheck Protection                            ■ 6. Add appendix E to subpart A of
                                          insured branch’s Report of Assets and                                  Program and the balance of assets                                 part 327 to read as follows:
                                          Liabilities of U.S. Branches and                                       purchased under the Money Market
                                          Agencies of Foreign Banks, the FDIC                                    Mutual Fund Liquidity Facility                                    Appendix E to Subpart A of Part 327—
                                          will take the sum of either the quarterly                              outstanding, both as reported on the                              Mitigating the Deposit Insurance
                                          average amount of loans pledged to the                                 Consolidated Report of Condition and                              Assessment Effect of Participation in
                                          Paycheck Protection Program Liquidity                                  Income. Any institution with assets of                            the Money Market Mutual Fund
                                          Facility as reported in the Report of                                  between $5 billion and $10 billion,                               Liquidity Facility, the Paycheck
                                          Assets and Liabilities of U.S. Branches                                excluding the outstanding balance of                              Protection Program Liquidity Facility,
                                          and Agencies of Foreign Banks, or the                                  loans provided under the Paycheck                                 and the Paycheck Protection Program
                                          outstanding balance of loans provided                                  Protection Program and the balance of                             I. Mitigating the Assessment Effects of
                                          under the Paycheck Protection Program,                                 assets purchased under the MMLF, both                             Paycheck Protection Program Loans for
                                          as such certified data is provided to the                              as reported on the Consolidated Report                            Established Small Institutions

                                                    TABLE E.1—EXCLUSIONS FROM CERTAIN RISK MEASURES USED TO CALCULATE THE ASSESSMENT RATE FOR
                                                                                  ESTABLISHED SMALL INSTITUTIONS
                                                           Variables                                                            Description                                                            Exclusions

                                          Leverage Ratio (%) ..........................      Tier 1 capital divided by adjusted average assets. (Numerator and de-                 No Exclusion.
                                                                                               nominator are both based on the definition for prompt corrective ac-
                                                                                               tion.)
                                          Net Income before Taxes/Total As-                  Income (before applicable income taxes and discontinued operations)                   Exclude from total assets the outstanding balance of
                                            sets (%).                                          for the most recent twelve months divided by total assets 1.                          loans provided under the Paycheck Protection Pro-
                                                                                                                                                                                     gram.
                                          Nonperforming Loans and Leases/                    Sum of total loans and lease financing receivables past due 90 or                     Exclude from gross assets the outstanding balance
                                            Gross Assets (%).                                  more days and still accruing interest and total nonaccrual loans and                  of loans provided under the Paycheck Protection
                                                                                               lease financing receivables (excluding, in both cases, the maximum                    Program.
                                                                                               amount recoverable from the U.S. Government, its agencies or gov-
                                                                                               ernment-sponsored enterprises, under guarantee or insurance provi-
                                                                                               sions) divided by gross assets 2.
                                          Other Real Estate Owned/Gross                      Other real estate owned divided by gross assets 2 .................................   Exclude from gross assets the outstanding balance
                                            Assets (%).                                                                                                                              of loans provided under the Paycheck Protection
                                                                                                                                                                                     Program.
                                          Brokered Deposit Ratio ...................         The ratio of the difference between brokered deposits and 10 percent                  Exclude from total assets (in both numerator and de-
                                                                                               of total assets to total assets. For institutions that are well capitalized           nominator) the outstanding balance of loans pro-
                                                                                               and have a CAMELS composite rating of 1 or 2, brokered reciprocal                     vided under the Paycheck Protection Program.
                                                                                               deposits as defined in § 327.8(q) are deducted from brokered depos-
                                                                                               its. If the ratio is less than zero, the value is set to zero.




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                                          Weighted Average of C, A, M, E, L,                 The weighted sum of the ‘‘C,’’ ‘‘A,’’ ‘‘M,’’ ‘‘E‘‘, ‘‘L‘‘, and ‘‘S’’ CAMELS           No Exclusion.
                                           and S Component Ratings.                            components, with weights of 25 percent each for the ‘‘C’’ and ‘‘M’’
                                                                                               components, 20 percent for the ‘‘A’’ component, and 10 percent
                                                                                               each for the ‘‘E‘‘, ‘‘L’’ and ‘‘S’’ components.
                                          Loan Mix Index ................................    A measure of credit risk described paragraph (A) of this section ...........          Exclusions are described in paragraph (A) of this
                                                                                                                                                                                     section.




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                                                                        Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                                                          38295

                                                     TABLE E.1—EXCLUSIONS FROM CERTAIN RISK MEASURES USED TO CALCULATE THE ASSESSMENT RATE FOR
                                                                              ESTABLISHED SMALL INSTITUTIONS—Continued
                                                            Variables                                                                  Description                                                                              Exclusions

                                          One-Year Asset Growth (%) ............               Growth in assets (adjusted for mergers 3) over the previous year in ex-                             Exclude from total assets (in both numerator and de-
                                                                                                 cess of 10 percent.4 If growth is less than 10 percent, the value is                                nominator) the outstanding balance of loans pro-
                                                                                                 set to zero.                                                                                        vided under the Paycheck Protection Program.
                                            1 The ratio of Net Income before Taxes to Total Assets is bounded below by (and cannot be less than) -25 percent and is bounded above by (and cannot exceed) 3
                                          percent.
                                            2 Gross assets are total assets plus the allowance for loan and lease financing receivable losses (ALLL) or allowance for credit losses, as applicable.
                                            3 Growth in assets is also adjusted for acquisitions of failed banks.
                                            4 The maximum value of the Asset Growth measure is 230 percent; that is, asset growth (merger adjusted) over the previous year in excess of 240 percent (230
                                          percentage points in excess of the 10 percent threshold) will not further increase a bank’s assessment rate.


                                             (a) Definition of Loan Mix Index. The Loan                               the Paycheck Protection Program exceeds the                                  provided under the Paycheck Protection
                                          Mix Index assigns loans in an institution’s                                 balance of commercial and industrial loans,                                  Program by the associated weighted average
                                          loan portfolio to the categories of loans                                   exclude the remaining balance from the                                       charge-off rate for that loan category, and
                                          described in the following table. Exclude                                   balance of agricultural loans, up to the total                               summing the products for all loan categories.
                                          from the balance of commercial and                                          amount of agricultural loans. The Loan Mix                                   The table gives the weighted average charge-
                                          industrial loans the outstanding balance of                                 Index is calculated by multiplying the ratio
                                          loans provided under the Paycheck                                           of an institution’s amount of loans in a                                     off rate for each category of loan. The Loan
                                          Protection Program. In the event that the                                   particular loan category to its total assets,                                Mix Index excludes credit card loans.
                                          outstanding balance of loans provided under                                 excluding the outstanding balance of loans                                     (b) [Reserved]

                                                                                LOAN MIX INDEX CATEGORIES AND WEIGHTED CHARGE-OFF RATE PERCENTAGES
                                                                                                                                                                                                                                         Weighted charge-off
                                                                                                                                                                                                                                            rate percent

                                          Construction & Development ...................................................................................................................................................                           4.4965840
                                          Commercial & Industrial ..........................................................................................................................................................                       1.5984506
                                          Leases .....................................................................................................................................................................................             1.4974551
                                          Other Consumer ......................................................................................................................................................................                    1.4559717
                                          Real Estate Loans Residual ....................................................................................................................................................                          1.0169338
                                          Multifamily Residential .............................................................................................................................................................                    0.8847597
                                          Nonfarm Nonresidential ...........................................................................................................................................................                       0.7289274
                                          I—4 Family Residential ............................................................................................................................................................                      0.6973778
                                          Loans to Depository banks ......................................................................................................................................................                         0.5760532
                                          Agricultural Real Estate ...........................................................................................................................................................                     0.2376712
                                          Agriculture ................................................................................................................................................................................             0.2432737



                                          II. Mitigating the Assessment Effects of
                                          Paycheck Protection Program Loans for
                                          Large or Highly Complex Institutions

                                           TABLE E.2—EXCLUSIONS FROM CERTAIN RISK MEASURES USED TO CALCULATE THE ASSESSMENT RATE FOR LARGE OR
                                                                               HIGHLY COMPLEX INSTITUTIONS
                                                            Scorecard Measures1                                                                    Description                                                                      Exclusions

                                          Leverage Ratio ....................................................   Tier 1 capital for Prompt Corrective Action (PCA) divided by ad-                          No Exclusion.
                                                                                                                  justed average assets based on the definition for prompt cor-
                                                                                                                  rective action.
                                          Concentration Measure for Large Insured de-                           The concentration score for large institutions is the higher of the
                                            pository institutions (excluding Highly Com-                          following two scores:
                                            plex Institutions).
                                              (1) Higher-Risk Assets/Tier 1 Capital and                         Sum of construction and land development (C&D) loans (funded                              No Exclusion.
                                                 Reserves.                                                        and unfunded), higher-risk commercial and industrial (C&I)
                                                                                                                  loans (funded and unfunded), nontraditional mortgages, high-
                                                                                                                  er-risk consumer loans, and higher-risk securitizations divided
                                                                                                                  by Tier 1 capital and reserves. See Appendix C for the de-
                                                                                                                  tailed description of the ratio.
                                                   (2) Growth-Adjusted Portfolio Concentra-                     The measure is calculated in the following steps:
                                                     tions.                                                     (1) Concentration levels (as a ratio to Tier 1 capital and re-
                                                                                                                  serves) are calculated for each broad portfolio category:.
                                                                                                                     • Constructions and land development (C&D), ....................
                                                                                                                     • Other commercial real estate loans, ..................................
                                                                                                                     • First lien residential mortgages (including non-agency
                                                                                                                       residential mortgage-backed securities),.




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                                                                                                                     • Closed-end junior liens and home equity lines of credit
                                                                                                                       (HELOCs),.
                                                                                                                     • Commercial and industrial loans (C&I), .............................
                                                                                                                          • Credit card loans, and .................................................
                                                                                                                          • Other consumer loans. ................................................
                                                                                                                (2) Risk weights are assigned to each loan category based on
                                                                                                                  historical loss rates.



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                                          38296                Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                           TABLE E.2—EXCLUSIONS FROM CERTAIN RISK MEASURES USED TO CALCULATE THE ASSESSMENT RATE FOR LARGE OR
                                                                         HIGHLY COMPLEX INSTITUTIONS—Continued
                                                      Scorecard Measures1                                                Description                                                 Exclusions

                                                                                             (3) Concentration levels are multiplied by risk weights and
                                                                                               squared to produce a risk-adjusted concentration ratio for
                                                                                               each portfolio.
                                                                                             (4) Three-year merger-adjusted portfolio growth rates are then         Exclude from C&I loan growth rate the out-
                                                                                               scaled to a growth factor of 1 to 1.2 where a 3-year cumu-             standing amount of loans provided under the
                                                                                               lative growth rate of 20 percent or less equals a factor of 1          Paycheck Protection Program.
                                                                                               and a growth rate of 80 percent or greater equals a factor of
                                                                                               1.2. If three years of data are not available, a growth factor of
                                                                                               1 will be assigned.
                                                                                             (5) The risk-adjusted concentration ratio for each portfolio is
                                                                                               multiplied by the growth factor and resulting values are
                                                                                               summed.
                                                                                             See Appendix C for the detailed description of the measure ......
                                          Concentration Measure for Highly Complex In-       Concentration score for highly complex institutions is the highest
                                            stitutions.                                        of the following three scores:
                                               (1) Higher-Risk Assets/Tier 1 Capital and     Sum of C&D loans (funded and unfunded), higher-risk C&I loans          No Exclusion.
                                                  Reserves.                                    (funded and unfunded), nontraditional mortgages, higher-risk
                                                                                               consumer loans, and higher-risk securitizations divided by
                                                                                               Tier 1 capital and reserves. See Appendix C for the detailed
                                                                                               description of the measure.
                                              (2) Top 20 Counterparty Exposure/Tier 1        Sum of the 20 largest total exposure amounts to counterparties         No Exclusion.
                                                Capital and Reserves.                          divided by Tier 1 capital and reserves. The total exposure
                                                                                               amount is equal to the sum of the institution’s exposure
                                                                                               amounts to one counterparty (or borrower) for derivatives, se-
                                                                                               curities financing transactions (SFTs), and cleared trans-
                                                                                               actions, and its gross lending exposure (including all un-
                                                                                               funded commitments) to that counterparty (or borrower). A
                                                                                               counterparty includes an entity’s own affiliates. Exposures to
                                                                                               entities that are affiliates of each other are treated as expo-
                                                                                               sures to one counterparty (or borrower). Counterparty expo-
                                                                                               sure excludes all counterparty exposure to the U.S. Govern-
                                                                                               ment and departments or agencies of the U.S. Government
                                                                                               that is unconditionally guaranteed by the full faith and credit of
                                                                                               the United States. The exposure amount for derivatives, in-
                                                                                               cluding OTC derivatives, cleared transactions that are deriva-
                                                                                               tive contracts, and netting sets of derivative contracts, must
                                                                                               be calculated using the methodology set forth in 12 CFR
                                                                                               324.34(b), but without any reduction for collateral other than
                                                                                               cash collateral that is all or part of variation margin and that
                                                                                               satisfies the requirements of 12 CFR 324.10(c)(4)(ii)(C)(1)(ii)
                                                                                               and (iii) and 324.10(c)(4)(ii)(C)(3) through (7). The exposure
                                                                                               amount associated with SFTs, including cleared transactions
                                                                                               that are SFTs, must be calculated using the standardized ap-
                                                                                               proach set forth in 12 CFR 324.37(b) or (c). For both deriva-
                                                                                               tives and SFT exposures, the exposure amount to central
                                                                                               counterparties must also include the default fund contribution.
                                              (3) Largest Counterparty Exposure/Tier 1       The largest total exposure amount to one counterparty divided          No Exclusion.
                                                Capital and Reserves.                          by Tier 1 capital and reserves. The total exposure amount is
                                                                                               equal to the sum of the institution’s exposure amounts to one
                                                                                               counterparty (or borrower) for derivatives, SFTs, and cleared
                                                                                               transactions, and its gross lending exposure (including all un-
                                                                                               funded commitments) to that counterparty (or borrower). A
                                                                                               counterparty includes an entity’s own affiliates. Exposures to
                                                                                               entities that are affiliates of each other are treated as expo-
                                                                                               sures to one counterparty (or borrower). Counterparty expo-
                                                                                               sure excludes all counterparty exposure to the U.S. Govern-
                                                                                               ment and departments or agencies of the U.S. Government
                                                                                               that is unconditionally guaranteed by the full faith and credit of
                                                                                               the United States. The exposure amount for derivatives, in-
                                                                                               cluding OTC derivatives, cleared transactions that are deriva-
                                                                                               tive contracts, and netting sets of derivative contracts, must
                                                                                               be calculated using the methodology set forth in 12 CFR
                                                                                               324.34(b), but without any reduction for collateral other than
                                                                                               cash collateral that is all or part of variation margin and that
                                                                                               satisfies the requirements of 12 CFR 324.10(c)(4)(ii)(C)(1)(ii)
                                                                                               and (iii) and 324.10(c)(4)(ii)(C)(3) through (7). The exposure
                                                                                               amount associated with SFTs, including cleared transactions
                                                                                               that are SFTs, must be calculated using the standardized ap-
                                                                                               proach set forth in 12 CFR 324.37(b) or (c). For both deriva-
                                                                                               tives and SFT exposures, the exposure amount to central
                                                                                               counterparties must also include the default fund contribution.




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                                                                     Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                                            38297

                                           TABLE E.2—EXCLUSIONS FROM CERTAIN RISK MEASURES USED TO CALCULATE THE ASSESSMENT RATE FOR LARGE OR
                                                                         HIGHLY COMPLEX INSTITUTIONS—Continued
                                                           Scorecard Measures1                                                             Description                                                          Exclusions

                                          Core Earnings/Average Quarter-End Total As-                      Core earnings are defined as net income less extraordinary                        Prior to averaging, exclude from total assets for
                                            sets.                                                            items and tax-adjusted realized gains and losses on available-                    the applicable quarter-end periods the out-
                                                                                                             for-sale (AFS) and held-to-maturity (HTM) securities, adjusted                    standing balance of loans provided under the
                                                                                                             for mergers. The ratio takes a four-quarter sum of merger-ad-                     Paycheck Protection Program.
                                                                                                             justed core earnings and divides it by an average of five quar-
                                                                                                             ter-end total assets (most recent and four prior quarters). If
                                                                                                             four quarters of data on core earnings are not available, data
                                                                                                             for quarters that are available will be added and annualized. If
                                                                                                             five quarters of data on total assets are not available, data for
                                                                                                             quarters that are available will be averaged.
                                          Credit Quality Measure 1 .....................................   The credit quality score is the higher of the following two scores:
                                              (1) Criticized and Classified Items/Tier 1                   Sum of criticized and classified items divided by the sum of Tier                 No Exclusion.
                                                 Capital and Reserves.                                       1 capital and reserves. Criticized and classified items include
                                                                                                             items an institution or its primary federal regulator have grad-
                                                                                                             ed ‘‘Special Mention’’ or worse and include retail items under
                                                                                                             Uniform Retail Classification Guidelines, securities, funded
                                                                                                             and unfunded loans, other real estate owned (ORE), other as-
                                                                                                             sets, and marked-to-market counterparty positions, less credit
                                                                                                             valuation adjustments. Criticized and classified items exclude
                                                                                                             loans and securities in trading books, and the amount recov-
                                                                                                             erable from the U.S. government, its agencies, or govern-
                                                                                                             ment-sponsored enterprises, under guarantee or insurance
                                                                                                             provisions.
                                               (2) Underperforming Assets/Tier 1 Capital                   Sum of loans that are 30 days or more past due and still accru-                   No Exclusion.
                                                 and Reserves.                                               ing interest, nonaccrual loans, restructured loans (including
                                                                                                             restructured 1–4 family loans), and ORE, excluding the max-
                                                                                                             imum amount recoverable from the U.S. government, its
                                                                                                             agencies, or government-sponsored enterprises, under guar-
                                                                                                             antee or insurance provisions, divided by a sum of Tier 1 cap-
                                                                                                             ital and reserves.
                                               Core Deposits/Total Liabilities ......................      Total domestic deposits excluding brokered deposits and unin-                     Exclude from total liabilities outstanding bor-
                                                                                                             sured non-brokered time deposits divided by total liabilities.                    rowings from Federal Reserve Banks under
                                                                                                                                                                                               the Paycheck Protection Program Liquidity
                                                                                                                                                                                               Facility with a maturity of one year or less
                                                                                                                                                                                               and outstanding borrowings from the Federal
                                                                                                                                                                                               Reserve Banks under the Paycheck Protec-
                                                                                                                                                                                               tion Program Liquidity Facility with a maturity
                                                                                                                                                                                               of greater than one year.
                                               Balance Sheet Liquidity Ratio ......................        Sum of cash and balances due from depository institutions, fed-                   Include in highly liquid assets the outstanding
                                                                                                             eral funds sold and securities purchased under agreements to                      balance of PPP loans that exceed borrowings
                                                                                                             resell, and the market value of available for sale and held to                    from the Federal Reserve Banks under the
                                                                                                             maturity agency securities (excludes agency mortgage-                             PPPLF, until September 30, 2020, or if ex-
                                                                                                             backed securities but includes all other agency securities                        tended by the Board of Governors of the Fed-
                                                                                                             issued by the U.S. Treasury, U.S. government agencies, and                        eral Reserve System and the Secretary of the
                                                                                                             U.S. government sponsored enterprises) divided by the sum                         Treasury, until such date of extension.
                                                                                                             of federal funds purchased and repurchase agreements, other                     Exclude from other borrowings with a remaining
                                                                                                             borrowings (including FHLB) with a remaining maturity of one                      maturity of one year or less the balance of
                                                                                                             year or less, 5 percent of insured domestic deposits, and 10                      outstanding borrowings from the Federal Re-
                                                                                                             percent of uninsured domestic and foreign deposits.                               serve Banks under the Paycheck Protection
                                                                                                                                                                                               Program Liquidity Facility with a remaining
                                                                                                                                                                                               maturity of one year or less.
                                          Potential Losses/Total Domestic Deposits (Loss                   Potential losses to the DIF in the event of failure divided by total              Exclusions are described in paragraph (A) of
                                            Severity Measure).                                               domestic deposits. Paragraph [A] of this section describes the                    this section.
                                                                                                             calculation of the loss severity measure in detail.
                                          Market Risk Measure for Highly Complex Institu-                  The market risk score is a weighted average of the following
                                           tions.                                                            three scores:
                                              (1) Trading Revenue Volatility/Tier 1 Capital                Trailing 4-quarter standard deviation of quarterly trading revenue                No Exclusion.
                                                                                                             (merger-adjusted) divided by Tier 1 capital.
                                              (2) Market Risk Capital/Tier 1 Capital ..........            Market risk capital divided by Tier 1 capital .................................   No Exclusion.
                                              (3) Level 3 Trading Assets/Tier 1 Capital ....               Level 3 trading assets divided by Tier 1 capital ...........................      No Exclusion.
                                          Average Short-term Funding/Average Total As-                     Quarterly average of federal funds purchased and repurchase                       Exclude from the quarterly average of total as-
                                            sets.                                                            agreements divided by the quarterly average of total assets                       sets the outstanding balance of loans pro-
                                                                                                             as reported on Schedule RC–K of the Call Reports.                                 vided under the Paycheck Protection Pro-
                                                                                                                                                                                               gram.
                                             1 The credit quality score is the greater of the criticized and classified items to Tier 1 capital and reserves score or the underperforming assets to Tier 1 capital and
                                          reserves score. The market risk score is the weighted average of three scores—the trading revenue volatility to Tier 1 capital score, the market risk capital to Tier 1
                                          capital score, and the level 3 trading assets to Tier 1 capital score. All of these ratios are described in appendix A of this subpart and the method of calculating the
                                          scores is described in appendix B of this subpart. Each score is multiplied by its respective weight, and the resulting weighted score is summed to compute the score
                                          for the market risk measure. An overall weight of 35 percent is allocated between the scores for the credit quality measure and market risk measure. The allocation
                                          depends on the ratio of average trading assets to the sum of average securities, loans and trading assets (trading asset ratio) as follows: (1) Weight for credit quality
                                          score = 35 percent * (1—trading asset ratio); and, (2) Weight for market risk score = 35 percent * trading asset ratio. In calculating the trading asset ratio, exclude
                                          from the balance of loans the outstanding balance of loans provided under the Paycheck Protection Program.




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                                            (a) Description of the loss severity measure.                        institution’s failure. To determine an                               composition of the institution’s liabilities.
                                          The loss severity measure applies a                                    institution’s loss severity rate, the FDIC first                     Exclude total outstanding borrowings from
                                          standardized set of assumptions to an                                  applies assumptions about uninsured deposit                          Federal Reserve Banks under the Paycheck
                                          institution’s balance sheet to measure                                 and other liability runoff, and growth in                            Protection Program Liquidity Facility from
                                          possible losses to the FDIC in the event of an                         insured deposits, to adjust the size and                             short-and long-term secured borrowings, as



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                                          38298                         Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations

                                          appropriate. Assets are then reduced to                                       loans, up to the total amount of agricultural                                 applied to estimated assets and liabilities at
                                          match any reduction in liabilities. Exclude                                   loans. Increase cash balances by outstanding                                  failure to determine whether the institution
                                          from an institution’s balance of commercial                                   loans provided under the Paycheck                                             has enough unencumbered assets to cover
                                          and industrial loans the outstanding balance                                  Protection Program that exceed total                                          domestic deposits. Any projected shortfall is
                                          of loans provided under the Paycheck                                          outstanding borrowings from Federal Reserve                                   divided by current domestic deposits to
                                          Protection Program. In the event that the                                     Banks under the Paycheck Protection
                                                                                                                                                                                                      obtain an end-of-period loss severity ratio.
                                          outstanding balance of loans provided under                                   Program Liquidity Facility, if any. The
                                          the Paycheck Protection Program exceeds the                                   institution’s asset values are then further                                   The loss severity measure is an average loss
                                          balance of commercial and industrial loans,                                   reduced so that the Leverage Ratio reaches 2                                  severity ratio for the three most recent
                                          exclude any remaining balance of loans                                        percent. In both cases, assets are adjusted pro                               quarters of data available.
                                          provided under the Paycheck Protection                                        rata to preserve the institution’s asset
                                                                                                                                                                                                      Runoff and Capital Adjustment Assumptions
                                          Program first from the balance of all other                                   composition. Assumptions regarding loss
                                          loans, up to the total amount of all other                                    rates at failure for a given asset category and                                   Table E.3 contains run-off assumptions.
                                          loans, followed by the balance of agricultural                                the extent of secured liabilities are then

                                                                                                                      TABLE E.3—RUNOFF RATE ASSUMPTIONS
                                                                                                                                                                                                                                                     Runoff rate *
                                                                                                                                    Liability type                                                                                                    (percent)

                                          Insured Deposits ..............................................................................................................................................................................                         (10)
                                          Uninsured Deposits .........................................................................................................................................................................                              58
                                          Foreign Deposits ..............................................................................................................................................................................                           80
                                          Federal Funds Purchased ...............................................................................................................................................................                                 100
                                          Repurchase Agreements .................................................................................................................................................................                                   75
                                          Trading Liabilities .............................................................................................................................................................................                         50
                                          Unsecured Borrowings < = 1 Year ..................................................................................................................................................                                        75
                                          Secured Borrowings < = 1 Year, excluding outstanding borrowings from the Federal Reserve Banks under the PPPLF < = 1
                                            Year ..............................................................................................................................................................................................                      25
                                          Subordinated Debt and Limited Liability Preferred Stock ...............................................................................................................                                                    15
                                             * A negative rate implies growth.


                                            Given the resulting total liabilities after                                 under the Paycheck Protection Program                                             • Multifamily Real Estate Loans;
                                          runoff, assets are then reduced pro rata to                                   Liquidity Facility;                                                               • 1—4 Family Closed-End First Liens;
                                          preserve the relative amount of assets in each                                  • Trading Account Assets;                                                       • 1—4 Family Closed-End Junior Liens;
                                          of the following asset categories and to                                        • Federal Funds Sold and Repurchase                                             • Revolving Home Equity Loans; and
                                                                                                                        Agreements;                                                                       • Agricultural Real Estate Loans
                                          achieve a Leverage Ratio of 2 percent:
                                                                                                                          • Treasury and Agency Securities;
                                            • Cash and Interest Bearing Balances,                                         • Municipal Securities;                                                     Recovery Value of Assets at Failure
                                          including outstanding loans provided under                                      • Other Securities;
                                          the Paycheck Protection Program in excess of                                    • Construction and Development Loans                                          Table E.4—shows loss rates applied to each
                                          borrowings from Federal Reserve Banks                                           • Nonresidential Real Estate Loans;                                         of the asset categories as adjusted above.

                                                                                                                 TABLE E.4—ASSET LOSS RATE ASSUMPTIONS
                                                                                                                                                                                                                                                      Loss rate
                                                                                                                                  Asset category                                                                                                      (percent)

                                          Cash and Interest Bearing Balances, including outstanding loans provided under the Paycheck Protection Program in excess
                                             of borrowings from Federal Reserve Banks under the Paycheck Protection Program Liquidity Facility ...................................                                                                               0.0
                                          Trading Account Assets ...................................................................................................................................................................                             0.0
                                          Federal Funds Sold and Repurchase Agreements .........................................................................................................................                                                 0.0
                                          Treasury and Agency Securities .....................................................................................................................................................                                   0.0
                                          Municipal Securities .........................................................................................................................................................................                        10.0
                                          Other Securities ...............................................................................................................................................................................                      15.0
                                          Construction and Development Loans ............................................................................................................................................                                       38.2
                                          Nonresidential Real Estate Loans ...................................................................................................................................................                                  17.6
                                          Multifamily Real Estate Loans .........................................................................................................................................................                               10.8
                                          1–4 Family Closed-End First Liens .................................................................................................................................................                                   19.4
                                          1–4 Family Closed-End Junior Liens ..............................................................................................................................................                                     41.0
                                          Revolving Home Equity Loans ........................................................................................................................................................                                  41.0
                                          Agricultural Real Estate Loans ........................................................................................................................................................                               19.7
                                          Agricultural Loans, excluding outstanding loans under the Paycheck Protection Program, as described in § 327.17 and this
                                             appendix .......................................................................................................................................................................................                   11.8
                                          Commercial and Industrial Loans, excluding outstanding loans under the Paycheck Protection Program, described in § 327.17
                                             and this appendix .........................................................................................................................................................................                        21.5
                                          Credit Card Loans ...........................................................................................................................................................................                         18.3
                                          Other Consumer Loans ...................................................................................................................................................................                              18.3
                                          All Other Loans, excluding outstanding loans under the Paycheck Protection Program, described in § 327.17 and this appen-




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                                             dix .................................................................................................................................................................................................              51.0
                                          Other Assets ....................................................................................................................................................................................                     75.0




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                                                                 Federal Register / Vol. 85, No. 124 / Friday, June 26, 2020 / Rules and Regulations                                                       38299

                                          Secured Liabilities at Failure                               fully secured because of the potential for ring            Loss Severity Ratio Calculation
                                                                                                       fencing.                                                     The FDIC’s loss given failure (LGD) is
                                            Federal Home Loan Bank advances,
                                                                                                         Exclude total outstanding borrowings from
                                          secured federal funds purchased and                          the Federal Reserve Banks under the                        calculated as:
                                          repurchase agreements are assumed to be                      Paycheck Protection Program Liquidity
                                          fully secured. Foreign deposits are treated as               Facility.




                                            An end-of-quarter loss severity ratio is LGD               III. Mitigating the Effects of Loans Provided
                                          divided by total domestic deposits at quarter-               Under the Paycheck Protection Program and
                                          end and the loss severity measure for the                    Assets Purchased Under the Money Market
                                          scorecard is an average of end-of-period loss                Mutual Fund Liquidity Facility on the
                                          severity ratios for three most recent quarters.              Unsecured Adjustment, Depository
                                                                                                       Institution Debt Adjustment, and the
                                            (b) [Reserved]
                                                                                                       Brokered Deposit Adjustment to an IDI’s
                                                                                                       Assessment Rate

                                                                  TABLE E.5—EXCLUSIONS FROM ADJUSTMENTS TO THE INITIAL BASE ASSESSMENT RATE
                                                       Adjustment                                                   Calculation                                                       Exclusion

                                          Unsecured debt adjustment .............    The unsecured debt adjustment shall be determined as the sum of the          Exclude from the assessment base the outstanding
                                                                                       initial base assessment rate plus 40 basis points; that sum shall be         balance of loans provided under the Paycheck Pro-
                                                                                       multiplied by the ratio of an insured depository institution’s long-term     tection Program and the quarterly average amount
                                                                                       unsecured debt to its assessment base. The amount of the reduction           of assets purchased under the Money Market Mu-
                                                                                       in the assessment rate due to the adjustment is equal to the dollar          tual Fund Liquidity Facility.
                                                                                       amount of the adjustment divided by the amount of the assessment
                                                                                       base.
                                          Depository institution debt adjust-        An insured depository institution shall pay a 50 basis point adjustment      Exclude from the assessment base the outstanding
                                            ment.                                      on the amount of unsecured debt it holds that was issued by another          balance of loans provided under the Paycheck Pro-
                                                                                       insured depository institution to the extent that such debt exceeds 3        tection Program and the quarterly average amount
                                                                                       percent of the institution’s Tier 1 capital. This amount is divided by       of assets purchased under the Money Market Mu-
                                                                                       the institution’s assessment base. The amount of long-term unse-             tual Fund Liquidity Facility.
                                                                                       cured debt issued by another insured depository institution shall be
                                                                                       calculated using the same valuation methodology used to calculate
                                                                                       the amount of such debt for reporting on the asset side of the bal-
                                                                                       ance sheets.
                                          Brokered deposit adjustment ...........    The brokered deposit adjustment shall be determined by multiplying 25        Exclude from the assessment base the outstanding
                                                                                       basis points by the ratio of the difference between an insured depos-        balance of loans provided under the Paycheck Pro-
                                                                                       itory institution’s brokered deposits and 10 percent of its domestic         tection Program and the quarterly average amount
                                                                                       deposits to its assessment base.                                             of assets purchased under the Money Market Mu-
                                                                                                                                                                    tual Fund Liquidity Facility.



                                          IV. Mitigating the Effects on the Assessment                 BUREAU OF CONSUMER FINANCIAL                               mortgages. Regulation Z states that an
                                          Base Attributable to Loans Provided Under                    PROTECTION                                                 area is ‘‘underserved’’ during a calendar
                                          the Paycheck Protection Program and                                                                                     year if, according to Home Mortgage
                                          Participation in the Money Market Mutual                     12 CFR Part 1026                                           Disclosure Act (HMDA) data for the
                                          Fund Liquidity Facility
                                                                                                                                                                  preceding calendar year, it is a county
                                            Total Assessment Amount Due = Total                        Truth in Lending (Regulation Z);
                                                                                                                                                                  in which no more than two creditors
                                          Assessment Amount LESS: (SUM                                 Determining ‘‘Underserved’’ Areas
                                                                                                                                                                  extended covered transactions, as
                                          (Outstanding balance of loans provided                       Using Home Mortgage Disclosure Act
                                                                                                       Data                                                       defined in Regulation Z, secured by first
                                          under the Paycheck Protection Program and
                                                                                                                                                                  liens on properties in the county five or
                                          quarterly average amount of assets purchased
                                                                                                       AGENCY: Bureau of Consumer Financial                       more times. The official commentary
                                          under the Money Market Mutual Fund
                                          Liquidity Facility) * Total Base Assessment                  Protection.                                                provides an interpretation relating to
                                          Rate)                                                        ACTION: Interpretive rule.                                 this standard that refers to certain data
                                                                                                                                                                  elements from the previous version of
                                            Federal Deposit Insurance Corporation.                                                                                the Bureau’s Regulation C, which
                                                                                                       SUMMARY: This interpretive rule
                                            By order of the Board of Directors.                        construes the Bureau of Consumer                           implements HMDA, that were modified
                                            Dated at Washington, DC, on June 22, 2020.                 Financial Protection’s (Bureau’s)                          or eliminated in the 2015 amendments
                                          James P. Sheesley,                                           Regulation Z, which implements the                         to Regulation C. The Bureau is issuing
                                          Acting Assistant Executive Secretary.                        Truth in Lending Act (TILA). The                           this interpretive rule to supersede that
                                          [FR Doc. 2020–13751 Filed 6–24–20; 2:30 pm]
                                                                                                       Bureau produces annually a list of rural                   now outdated interpretation,
                                                                                                       and underserved counties and areas that                    specifically by describing below the
                                          BILLING CODE 6714–01–P




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                                                                                                       is used in applying various Regulation                     HMDA data that will instead be used in
                                                                                                       Z provisions, such as the exemption                        determining that an area is
                                                                                                       from the requirement to establish an                       ‘‘underserved.’’
                                                                                                       escrow account for a higher-priced
                                                                                                       mortgage loan and the ability to                           DATES: This interpretive rule is effective
                                                                                                       originate balloon-payment qualified                        on June 26, 2020.

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