§ 1240.11 Capital conservation buffer and leverage buffer. ( a ) *Definitions.* For purposes of this section, the following definitions apply: ( 1 ) *Capital conservation buffer.* An Enterprise's capital conservation buffer is the amount calculated under paragraph (c)(2) of this section.
( 2 ) *Eligible retained income.* The eligible retained income of an Enterprise is the greater of: ( i ) The Enterprise's net income, as defined under GAAP, for the four calendar quarters preceding the current calendar quarter, net of any distributions and associated tax effects not already reflected in net income; and
( ii ) The average of the Enterprise's net income for the four calendar quarters preceding the current calendar quarter.
( 3 ) *Leverage buffer.* An Enterprise's leverage buffer is the amount calculated under paragraph (d)(2) of this section.
( 4 ) *Maximum payout ratio.* The maximum payout ratio is the percentage of eligible retained income that an Enterprise can pay out in the form of distributions and discretionary bonus payments during the current calendar quarter. The maximum payout ratio is determined under paragraph (b)(2) of this section.
( 5 ) *Prescribed capital conservation buffer amount.* An Enterprise's prescribed capital conservation buffer amount is equal to its stress capital buffer in accordance with paragraph (a)(7) of this section plus its applicable countercyclical capital buffer amount in accordance with paragraph (e) of this section plus its applicable stability capital buffer in accordance with paragraph (f) of this section.
( 6 ) *Prescribed leverage buffer amount.* An Enterprise's prescribed leverage buffer amount is 50 percent of the Enterprise's stability capital buffer calculated in accordance with subpart G of this part.
( 7 ) *Stress capital buffer.* ( i ) The stress capital buffer for an Enterprise is the stress capital buffer determined under § 1240.500 except as provided in paragraph (a)(7)(ii) of this section.
( ii ) If an Enterprise has not yet received a stress capital buffer requirement, its stress capital buffer for purposes of this part is 0.75 percent of the Enterprise's adjusted total assets, as of the last day of the previous calendar quarter.
( b ) *Maximum payout amount* — ( 1 ) *Limits on distributions and discretionary bonus payments.* An Enterprise shall not make distributions or discretionary bonus payments or create an obligation to make such distributions or payments during the current calendar quarter that, in the aggregate, exceed the amount equal to the Enterprise's eligible retained income for the calendar quarter, multiplied by its maximum payout ratio.
( 2 ) *Maximum payout ratio.* The maximum payout ratio of an Enterprise is the lowest of the payout ratios determined by its capital conservation buffer and its leverage buffer, as set forth on Table 1 to paragraph (b)(5) of this section.
( 3 ) *No maximum payout amount limitation.* An Enterprise is not subject to a restriction under paragraph (b)(1) of this section if it has: ( i ) A capital conservation buffer that is greater than its prescribed capital conservation buffer amount; and
( ii ) A leverage buffer that is greater than its prescribed leverage buffer amount.
( 4 ) *Negative eligible retained income.* An Enterprise may not make distributions or discretionary bonus payments during the current calendar quarter if: ( i ) The eligible retained income of the Enterprise is negative; and
( ii ) Either: ( A ) The capital conservation buffer of the Enterprise was less than its stress capital buffer; or
( B ) The leverage buffer of the Enterprise was less than its prescribed leverage buffer amount.
( 5 ) *Prior approval.* Notwithstanding the limitations in paragraphs (b)(1) through (3) of this section, FHFA may permit an Enterprise to make a distribution or discretionary bonus payment upon a request of the Enterprise, if FHFA determines that the distribution or discretionary bonus payment would not be contrary to the purposes of this section or to the safety and soundness of the Enterprise. In making such a determination, FHFA will consider the nature and extent of the request and the particular circumstances giving rise to the request.
( c ) *Capital conservation buffer* — ( 1 ) *Composition of the capital conservation buffer.* The capital conservation buffer is composed solely of common equity tier 1 capital.
( 2 ) *Calculation of capital conservation buffer.* ( i ) An Enterprise's capital conservation buffer is equal to the lowest of the following, calculated as of the last day of the previous calendar quarter: ( A ) The Enterprise's adjusted total capital minus the minimum amount of adjusted total capital under § 1240.10(b);
( B ) The Enterprise's tier 1 capital minus the minimum amount of tier 1 capital under § 1240.10(c); or
( C ) The Enterprise's common equity tier 1 capital minus the minimum amount of common equity tier 1 capital under § 1240.10(d).
( ii ) Notwithstanding paragraphs (c)(2)(i)(A) through (C) of this section, if the Enterprise's adjusted total capital, tier 1 capital, or common equity tier 1 capital is less than or equal to the Enterprise's minimum adjusted total capital, tier 1 capital, or common equity tier 1 capital, respectively, the Enterprise's capital conservation buffer is zero.
( d ) *Leverage buffer* — ( 1 ) *Composition of the leverage buffer.* The leverage buffer is composed solely of tier 1 capital.
( 2 ) *Calculation of the leverage buffer.* ( i ) An Enterprise's leverage buffer is equal to the Enterprise's tier 1 capital minus the minimum amount of tier 1 capital under § 1240.10(f), calculated as of the last day of the previous calendar quarter.
( ii ) Notwithstanding paragraph (d)(2)(i) of this section, if the Enterprise's tier 1 capital is less than or equal to the minimum amount of tier 1 capital under § 1240.10(d), the Enterprise's leverage buffer is zero.
( e ) *Countercyclical capital buffer amount* — ( 1 ) *Composition of the countercyclical capital buffer amount.* The countercyclical capital buffer amount is composed solely of common equity tier 1 capital.
( 2 ) *Amount* — ( i ) *Initial countercyclical capital buffer.* The initial countercyclical capital buffer amount is zero.
( ii ) *Adjustment of the countercyclical capital buffer amount.* FHFA will adjust the countercyclical capital buffer amount in accordance with applicable law.
( iii ) *Range of countercyclical capital buffer amount.* FHFA will adjust the countercyclical capital buffer amount between zero percent and 0.75 percent of adjusted total assets.
( iv ) *Adjustment determination.* FHFA will base its decision to adjust the countercyclical capital buffer amount under this section on a range of macroeconomic, financial, and supervisory information indicating an increase in systemic risk, including the ratio of credit to gross domestic product, a variety of asset prices, other factors indicative of relative credit and liquidity expansion or contraction, funding spreads, credit condition surveys, indices based on credit default swap spreads, options implied volatility, and measures of systemic risk.
( 3 ) *Effective date of adjusted countercyclical capital buffer amount* — ( i ) *Increase adjustment.* A determination by FHFA under paragraph (e)(2)(ii) of this section to increase the countercyclical capital buffer amount will be effective 12 months from the date of announcement, unless FHFA establishes an earlier effective date and includes a statement articulating the reasons for the earlier effective date.
( ii ) *Decrease adjustment.* A determination by FHFA to decrease the established countercyclical capital buffer amount under paragraph (e)(2)(ii) of this section will be effective on the day following announcement of the final determination or the earliest date permissible under applicable law or regulation, whichever is later.
( iii ) *Twelve month sunset.* The countercyclical capital buffer amount will return to zero percent 12 months after the effective date that the adjusted countercyclical capital buffer amount is announced, unless FHFA announces a decision to maintain the adjusted countercyclical capital buffer amount or adjust it again before the expiration of the 12-month period.
( f ) *Stability capital buffer.* An Enterprise must use its stability capital buffer calculated in accordance with subpart G of this part for purposes of determining its maximum payout ratio under Table 1 to paragraph (b)(5) of this section.
[85 FR 82198, Dec. 17, 2020, as amended at 87 FR 14770, Mar. 16, 2022; 87 FR 33617, June 3, 2022]