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Financial Services Law Insights and Observations

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  • Agencies issue joint proposal to streamline small institution reporting requirements

    Agency Rule-Making & Guidance

    On November 7, the OCC, FDIC, and Federal Reserve issued a proposal to streamline regulatory reporting for qualifying small institutions to implement Section 205 of the Economic Growth, Regulatory Relief, and Consumer Protection Act. Specifically, the joint proposal would permit depository institutions with less than $5 billion in assets—previously set at $1 billion—that do not engage in certain complex or international activities to file the FFIEC 051 Call Report, the most streamlined version of the Call Reports. Additionally, the proposal would reduce the existing reportable data items in the FFIEC 051 Call Report by approximately 37 percent for the first and third calendar quarters. The proposal also includes similar provisions for uninsured institutions with less than $5 billion in total consolidated assets that are supervised by the Federal Reserve and the OCC. Comments on the proposal must be received within 60 days of publication in the Federal Register.

    Agency Rule-Making & Guidance FDIC Federal Register Federal Reserve OCC Call Report EGRRCPA

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  • Fed proposes supervisory categories

    Agency Rule-Making & Guidance

    On October 31, the Federal Reserve announced a proposed rulemaking to more closely match certain regulations for large banking organization with their risk profile. The proposal would establish four risk-based categories for applying the regulatory capital rule, the liquidity coverage ratio rule, and the proposed net stable funding ratio rule for banks with $100 billion or more in assets. Specifically, the Federal Reserve proposes to establish the four categories using risk-based indicators, such as size, cross-jurisdictional activity, weighted short-term wholesale funding, nonbank assets, and off-balance sheet exposure. According to the proposal, the most significant changes will be for banks are in the two lowest risk categories:

    • Banks with $100 billion to $250 billion in total consolidated assets would generally fall into the lowest risk category and would (i) no longer be subject to the standardized liquidity requirements; (ii) no longer be required to conduct company-run stress tests, and (iii) be subject to supervised stress tests on a two-year cycle.
    • Banks with $250 billion or more in total consolidated assets, or material levels of other risk factors, that are not global systemically important banking institutions (GSIBs), would (i) have reduced liquidity requirements; and (ii) only be required to perform company run stress tests on a two-year cycle. These banks would still be subject to annual supervised stress tests.

    Banks in the highest two risk categories, including GSIBs, would not see any changes to capital or liquidity requirements. A chart of the proposed requirements for each risk category is available here.

    Comments on the proposal must be received by January 22, 2019.

    Additionally, the Federal Reserve released a joint proposal with the OCC and FDIC that would tailor requirements under the regulatory capital rule, the Liquidity Coverage Ratio and the proposed Net Stable Funding Ratio to be consistent with the prudential standard changes.

    Agency Rule-Making & Guidance Federal Reserve FDIC OCC Bank Supervision GSIBs Liquidity Standards Stress Test

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  • FDIC releases September enforcement actions, including breaches of fiduciary duty and BSA violations

    Federal Issues

    On October 26, the FDIC announced a list of administrative enforcement actions taken against banks and individuals in September. Included among the actions is a removal and prohibition and civil money penalty assessment issued against a bank’s president, CEO and board chairman (in his individual capacity as an institution-affiliated party) of a Florida-based bank for allegedly engaging in unsafe or unsound practices and breaches of fiduciary duty while employed by the bank. Among other claims, the respondent allegedly created a conflict of interest when he operated a consumer finance company, which he personally owned, out of one of the bank's branches. The FDIC contends that the respondent (i) operated the company through the utilization of bank property and staff without reimbursing the bank; (ii) issued loans to bank customers through the company; (iii) repaid the company using overdraft funds from customers’ bank accounts; and (iv) “caused the release and sale of bank collateral without full repayment to the bank when a portion of the sale proceeds were being used to pay on a finance company loan.” According to the FDIC, the respondent failed to disclose his actions to the bank’s board of directors as required by state law and a consent order the bank entered into in July 2010.

    Additionally, a consent order was issued to a South Carolina bank related to alleged weaknesses in its Bank Secrecy Act (BSA) compliance program. The bank was ordered to, among other things, (i) revise and implement internal controls and policies and procedures for BSA compliance, including suspicious activity monitoring and reporting and customer due diligence procedures; (ii) perform an enhanced risk assessment of the bank’s operations; and (iii) take necessary steps to correct or eliminate all cited violations, such as conducting independent testing and implement effective BSA training programs.

    There are no administrative hearings scheduled for November 2018. The FDIC database containing all 24 enforcement decisions and orders may be accessed here.

    Federal Issues FDIC Enforcement Bank Secrecy Act Compliance

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  • FDIC proposes to eliminate annual disclosure requirement for state nonmember banks

    Agency Rule-Making & Guidance

    On October 25, the FDIC published a proposed rule in the Federal Register to rescind the annual disclosure requirement applicable to all state nonmember banks and insured state-licensed branches of foreign banks (collectively, “banks”). Specifically, the FDIC is proposing to eliminate 12 CFR Part 350, which, in general, required banks to prepare annual disclosure statements consisting of (i) required financial data comparable to specified schedules in the Call Reports filed for the previous two years; (ii) information that the FDIC may request, such as enforcement actions; and (iii) other information the bank chooses to disclose. According to the proposal, the FDIC has determined that the regulation is “outdated and no longer necessary,” because, with widespread access to the internet, information about the financial condition and performance of individual banks is now “reliably and directly offered to the public through the FDIC’s and the Federal Financial Institutions Examination Council’s (FFIEC) websites” in the form of Call Reports and Uniform Bank Performance Reports. This eliminates the need for the annual disclosure statement requirements. Similar disclosure requirements have already been rescinded in recent years by the Federal Reserve Board and OCC. Comments on the proposed rule must be received by November 26.

    Agency Rule-Making & Guidance FDIC Federal Register Disclosures Call Report FFIEC

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  • Federal banking agencies issue appraisal regulation FAQs

    Agency Rule-Making & Guidance

    On October 16, the FDIC, Federal Reserve Board, and the OCC issued FAQs to offer additional clarification concerning appraisal and evaluation functions set out in the 2010 Interagency Appraisal and Evaluation Guidelines, the 2016 Interagency Advisory on Use of Evaluations in Real Estate-Related Financial Transactions, and other related regulations, guidance, and advisories. (See FDIC FIL-62-2018 and OCC Bulletin 2018-39.) The FAQs—which do not introduce new policy or guidance—address a range of topics including (i) regulatory and statutory requirements applicable to appraisal and evaluation programs; (ii) financial institutions’ review of appraisal and evaluation programs; (iii) appraisal exemptions; (iv) development of appraisals and evaluations, including relevant policies and procedures; and (v) appraisal independence.

    Agency Rule-Making & Guidance FDIC Federal Reserve OCC Appraisal

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  • FDIC FIL provides guidance on HMDA partial exemptions

    Agency Rule-Making & Guidance

    On October 10, the FDIC issued FIL-58-2018 which summarizes guidance provided by the CFPB on the implementation of partial exemptions from certain of HMDA’s reporting requirements for specific insured depository institutions and insured credit unions pursuant to Section 104(a) of the Economic Growth, Regulatory Relief, and Consumer Protection Act. On August 31, as previously covered in InfoBytes here, the Bureau issued an interpretive and procedural rule to implement and clarify recent HMDA amendments and outline exemption qualification requirements. FIL-58-2018 reminds FDIC-supervised institutions subject to HMDA and Regulation C of the following clarifications made by the Bureau: (i) there are 26 data points covered by the partial exemptions and 22 other data points that all HMDA reporters must collect, record, and report”; (ii) loans counted towards partial exemption thresholds must otherwise be reportable under Regulation C; (iii) exception based on Community Reinvestment Act examination reports will be determined by the two most recent CRA ratings as of December 31 of the preceding calendar year; (iv) if an institution eligible for a partial exemption chooses not to report a universal loan identifier, it must report a non-universal loan identifier unique within the institution; and (v) institutions exempt from certain reporting requirements may still report exempt data fields so long as they “report all data fields associated with that data point.”

    Agency Rule-Making & Guidance FDIC CFPB HMDA EGRRCPA S. 2155 Mortgages CRA

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  • Federal, state financial regulatory agencies issue guidance for institutions affected by Hurricane Michael

    Federal Issues

    On October 10, the OCC, Federal Reserve Board, FDIC, NCUA, and the Conference of State Bank Supervisors (collectively, the “agencies”) issued a joint statement providing guidance to financial institutions impacted by Hurricane Michael. The agencies encouraged lenders to work with borrowers in impacted communities to modify loans as appropriate based on the facts and circumstances of each borrower and loan. In addition, the agencies assured lenders that they would (i) expedite any request to operate temporary facilities to provide more convenient services to those affected by Hurricane Michael; (ii) not generally assess penalties for institutions who take prudent steps to satisfy any publishing or reporting requirements, including by contacting their state or federal regulator to discuss satisfaction of such requirements; and (iii) consider granting institutions favorable Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery.

    On the same day the joint statement was issued, the FDIC issued a statement encouraging depository institutions to assist affected customers (see FIL-59-2018), which may include “waiving fees, increasing ATM cash limits, easing credit card limits, allowing loan customers to defer or skip payments, and delaying the submission of delinquency notices to credit bureaus.” The FDIC also encouraged depository institutions to use Bank Secrecy Act-permitted “non-documentary verification methods” for customers unable to provide standard identification documents and stated that prudent efforts taken to meet customers’ cash and financial needs “generally will not be subject to examiner criticism.”

    Find continuing InfoBytes coverage on disaster relief here.

    Federal Issues FDIC OCC Federal Reserve Disaster Relief CRA Bank Secrecy Act Consumer Finance

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  • Federal Reserve releases eligibility criteria for 18-month on-site examination cycles

    Agency Rule-Making & Guidance

    On October 1, the Federal Reserve Board (Board) issued SR 18-7 to qualifying state member banks and U.S. branches and agencies of foreign banks outlining updated 18-month on-site examination eligibility criteria. As previously covered in InfoBytes, the Board, OCC, and FDIC issued an interim final rule effective August 29—as authorized by the Economic Growth, Regulatory Reform, and Consumer Protection Act—which qualifies banks with less than $3 billion in total assets (an increase from the previous threshold of $1 billion), provided they satisfy additional criteria. SR 18-7 separately lists the relevant eligibility criteria for state member banks and for U.S. branches or agencies of foreign banks, and requires that qualifying banks (i) not be subject to a federal banking agency’s formal enforcement proceeding or order; and (ii) not have experienced a change of control during the previous 12 months that would have required a full-scope examination. Additional eligibility criteria address component and composite examination ratings and risk-based capital ratios.

    Agency Rule-Making & Guidance Federal Reserve EGRRCPA S. 2155 Examination OCC FDIC

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  • Agencies permit bank resource sharing for Bank Secrecy Act compliance

    Agency Rule-Making & Guidance

    On October 3, the Financial Crimes Enforcement Network, Federal Reserve Board, FDIC, NCUA, and OCC (together, the agencies) issued an interagency statement outlining instances where banks and credit unions may choose to enter into collaborative arrangements to share resources in order to more efficiently and effectively manage their Bank Secrecy Act (BSA) and anti-money laundering (AML) obligations. The statement noted that collaborative arrangements are most suitable for “banks with a community focus, less complex operations, and lower-risk profiles for money laundering or terrorist financing.” The agencies described several examples in which collaboration between banks may be beneficial, such as (i) conducting internal control functions, including reviewing and drafting BSA/AML policies and procedures and risk-based customer identification and account monitoring processes; (ii) sharing resources for BSA/AML independent testing; and (iii) conducting BSA/AML training on regulatory requirements and internal policies, procedures, and processes. Other potential benefits include cost reductions, increases in operational efficiencies, and the availability to leverage specialized expertise.

    However, the agencies cautioned that banks who choose to enter into collaborative agreements should carefully consider the associated risks “in relation to the bank’s risk profile, adequate documentation, consideration of legal restrictions, and the establishment of appropriate oversight mechanisms.” Moreover, banks should ensure that the collaborative arrangement is consistent with sound principles of corporate governance, have in place a contractual agreement, conduct periodic performance reviews, and consult their regulator’s guidance concerning third-party relationship to ensure compliance. The agencies further noted that “each bank is responsible for ensuring compliance with BSA requirements. Sharing resources in no way relieves a bank of this responsibility.” The interagency statement emphasizes that it is not applicable “to collaborative arrangements or consortia formed for the purpose of sharing information under Section 314(b) of the USA PATRIOT Act,” and “banks that form collaborative arrangements as described in this interagency statement are not an association for purposes of Section 314(b) of the USA PATRIOT Act.”

    (See also Federal Reserve Board press release, FDIC press release, NCUA press release, and OCC press release and Bulletin 2018-36.)

    Agency Rule-Making & Guidance Federal Reserve FDIC OCC FinCEN NCUA Bank Secrecy Act Anti-Money Laundering Bank Compliance

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  • FDIC announces transparency initiative, publication of performance metrics

    Agency Rule-Making & Guidance

    On October 3, the FDIC announced the “Trust through Transparency” initiative, an agency-wide program designed to “strengthen the trust between the agency, other regulators, the public, and banks.” The FDIC chairman’s remarks at the 2018 Community Banking in the 21st Century Research and Policy Conference emphasized the importance of trust through transparency to the FDIC’s core mission of “maintaining stability and public confidence in the nation's financial system.”

    According to the announcement, the FDIC has launched a new section of its website, which will publish and regularly update key performance metrics such as (i) examination turnaround times; (ii) application processing times, including for de novo banks; and (iii) call center usage and response rates. Within the same section of the website, users will be able to access (i) FDIC policies and procedures; (ii) decisions and guidance related to material supervisory determination and deposit insurance assessment appeals; and (iii) information related to the process for implementing the risk-focused supervision program. As part of this initiative, the chairman noted, the agency is undertaking a review of information it has deemed confidential and its FOIA process, including, specifically, the application of exemptions.

    As previously covered in InfoBytes, the FDIC issued a request for information seeking comments and information on how the agency can more effectively streamline its communications and transparency efforts.

    Agency Rule-Making & Guidance FDIC

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