The Board of Governors of the Federal Reserve System ("FRB") adopted a final rule to require U.S. top-tier bank holding companies, identified as global systemically important banking organizations ("GSIBs"), to maintain outstanding a minimum amount of loss absorbing instruments, including a minimum amount of unsecured long-term debt which can be converted to equity during resolution. The rule applies both to domestic firms and the U.S. operations of foreign GSIBs.

In addition to the loss absorbing requirement, the final rule also will require the parent holding company of a domestic GSIB to avoid entering into certain financial arrangements that would create obstacles to an orderly resolution. These "clean holding company" requirements will include bans on issuance of short-term debt to external investors and on entering into derivatives and certain other types of financial contracts with external counterparties.

According to the FRB, the rule is intended to help government authorities "resolve in an orderly way the largest domestic and foreign banks operating in the United States without any support from taxpayer-provided capital." According to the FRB, notable changes from the proposal include the following:

• "The final rule will grandfather long-term debt issued on or before December 31, 2016, by allowing it to count toward a firm's long-term debt requirement even if the debt has certain contractual clauses not allowed by the rule. To count toward a firm's long-term debt requirements, debt issued after that date will need to fully comply with the rule;
• While foreign firms' U.S. operations will generally be required to issue long-term debt to their foreign parent, the U.S. operations of certain foreign firms will be permitted to issue long-term debt to external parties, rather than solely to their parent companies, consistent with their resolution strategy; and
• The long-term debt requirements of foreign firms were slightly reduced to be consistent with the treatment of domestic firms, reflecting the expectation that the losses of those firms would slightly reduce their balance sheets and the capital needed for recapitalization."

All firms will be required to comply with the rule by January 1, 2019.