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FDIC orders entities to stop making fraudulent deposit insurance representations
On February 15, the FDIC sent letters to four entities demanding that they stop making false or misleading representations about FDIC deposit insurance. Letters were sent to a cryptocurrency exchange and to a nonbank financial services provider demanding that the entities cease and desist from making false and misleading statements about FDIC deposit insurance and take immediate corrective action to address these statements. The FDIC also sent letters to two websites ordering them to remove similar false and misleading statements claiming that the crypto exchange and the nonbank financial services provider are FDIC-insured and that FDIC insurance will protect customers’ cryptocurrency or protect customers in the event of the nonbank’s failure. Under the Federal Deposit Insurance Act, persons are prohibited “from representing or implying that an uninsured product is FDIC-insured or from knowingly misrepresenting the extent and manner of deposit insurance.”
Bowman discusses bank and third-party cyber risk management expectations
On February 15, Federal Reserve Board Governor Michelle W. Bowman delivered remarks at the Midwest Cyber Workshop, during which she discussed topics related to third-party service provider reliance and regulatory expectations concerning cyber risk management. “While we expect banks to be in touch with us when an event happens, cyber events should not be the first time a cyber-risk conversation occurs between a bank and its regulator.” Community banks frequently cite cybersecurity as one of the top risks facing the banking industry, Bowman said, adding that bankers have mentioned difficulties in attracting and retaining the staff needed to mitigate cyber risk. She also noted that ransomware disproportionately impacts smaller banks that might not “have sufficient resources to protect against these attacks.”
Pointing out that banks are becoming increasingly reliant on third-party service providers, Bowman said regulators should “consider the appropriateness of shifting the regulatory burden from community banks to more efficiently focus directly on service providers.” Regulators have authority to do so under the Bank Service Company Act, Bowman said, adding that “[i]n a world where third parties are providing far more of these services, it seems to me that these providers should bear more responsibility to ensure the outsourced activities are performed in a safe and sound manner.” She also referenced a 2021 final rule that requires banks to timely notify their primary federal regulator in the event of a significant computer-security incident within 36 hours after the banking organization determines that a cyber incident has taken place (covered by InfoBytes here). The reporting process, Bowman said, is also intended to streamline small banks’ efforts to monitor service providers (which are required to notify a bank-designated point of contact at each affected customer bank when a computer-security incident has occurred).
“We look forward to working with you to assist in clarifying expectations, applying regulatory guidance or seeking feedback on cyber-risk management strategies,” Bowman said. “We encourage bank management teams to engage with regulatory points of contact whenever questions arise on cybersecurity matters just as with any other regulatory matter.”
Brainard resigns as Fed vice chair to join Biden economic team
On February 14, President Biden appointed Federal Reserve Board Vice Chair Lael Brainard to serve as Director of the National Economic Council (NEC). Touting Brainard’s domestic and international economic expertise, Biden said she will be the second female director of the NEC. Brainard submitted her resignation from the Fed the same day, effective on or around February 20. Brainard has been a Fed Board member since June 2014, and has served as vice chair since May 2022. During her time at the Board, Brainard “chaired multiple committees, including the Committee on Financial Stability, the Committee on Economic and Monetary Affairs, the Committee on Payments, Clearing, and Settlement, and the Committee on Board Affairs, among others.” Brainard also served as chair of the Federal Open Market Committee's communication subcommittee, and has represented the Board internationally, including at the Bank for International Settlements, the Group of Seven, and the Financial Stability Board.
FHA seeks feedback on enhancements to rehabilitation mortgage insurance program
On February 14, FHA issued a request for information (RFI) seeking input on ways the agency can enhance its Single Family 203(k) Rehabilitation Mortgage Insurance Program. Under the 203(k) Program, borrowers who are purchasing or refinancing a home may obtain FHA insurance on a mortgage that will cover the home’s current value plus rehabilitation costs. The 203(k) Program currently offers two options for borrowers: (i) the Standard 203(k) Mortgage, which is used for remodeling and major repairs, carries a minimum repair cost of $5,000, and requires the use of a 203(k) consultant; and (ii) the Limited 203(k) Mortgage, which is used for minor remodeling and non-structural repairs, has a maximum repair cost of $35,000, and does not require the use of a 203(k) consultant. FHA will use information gathered in response to the RFI “to identify barriers that limit the origination of 203(k) insured mortgages and lender participation in the program and consider opportunities to enhance the 203(k) Program to support HUD’s goal of increasing the available supply of affordable housing in underserved communities.” Comments on the RFI are due April 17.
SEC proposes revisions to Privacy Act
On February 14, the SEC issued a proposed rule to revise the Commission’s regulations under the Privacy Act of 1974, as amended. The Privacy Act governs the collection, maintenance, use, and dissemination of information about individuals that is maintained by the federal agencies. Under the Privacy Act, individuals are afforded a right of access to records pertaining to them and a right to have inaccurate records corrected. Among other things, the revisions would clarify, update, and streamline the language of several procedural provisions to codify current practices for processing public requests. The revisions would also clarify the SEC’s process for how individuals can access information pertaining to themselves. If adopted, the proposed rule would also revise procedural and fee provisions, eliminate unnecessary provisions, and allow for electronic methods to verify one’s identity and submit Privacy Act requests. Comments on the proposed rule are due April 17, or 30 days after publication in the Federal Register, whichever is later.
Wilson to resign as FTC commissioner
On February 14, FTC Commissioner Christine Wilson announced plans to leave the agency. Wilson penned a Wall Street Journal op-ed, in which she took issue with a number of FTC Chair Lina Khan’s initiatives, including Khan’s antitrust policy and rulemaking efforts to ban the use of noncompete clauses in employee contracts. Wilson accused Khan of willfully disregarding congressionally imposed limits on agency jurisdiction, defying legal precedent, and abusing power to achieve desired outcomes. Chair Khan and Commissioners Rebecca Slaughter and Alvaro Bedoya issued a brief statement following Wilson’s announcement wishing “her well in her next endeavor.” The FTC is headed by five commissioners, each serving a seven year term, with no more than three commissioners coming from the same political party. With Wilson’s resignation, there are now two open seats on the Commission.
Agencies reiterate illegality of appraisal discrimination
On February 14, CFPB Fair Lending Director Patrice Ficklin joined senior leaders from the FDIC, HUD, NCUA, Federal Reserve Board, DOJ, OCC, and FHFA in submitting a joint letter to The Appraisal Foundation (TAF) urging the organization to further revise its draft Ethics Rule for appraisers to include a detailed statement of federal prohibitions against discrimination under the Fair Housing Act (FHA) and ECOA.
This is the second time the agencies have raised concerns with TAF. As previously covered by InfoBytes, last February, the agencies sent a joint letter in response to a request for comments on proposed changes to the 2023 Appraisal Standards Board Ethics Rule and Advisory Opinion 16, in which they noted that while provisions prohibit an appraiser from relying on “unsupported conclusions relating to characteristics such as race, color, religion, national origin, sex, sexual orientation, gender, marital status, familial status, age, receipt of public assistance income, disability, or an unsupported conclusion that homogeneity of such characteristics is necessary to maximize value,” the “provisions do not prohibit an appraiser from relying on ‘supported conclusions’ based on such characteristics and, therefore, suggest that such reliance may be permissible.” The letter noted that the federal ban on discrimination under the FHA and ECOA is not limited only to “unsupported” conclusions, and that any discussions related to potential appraisal bias should be consistent with all applicable nondiscrimination laws.
In their second letter, the agencies said that the fourth draft removed a detailed, unambiguous summary covering nondiscrimination standards under the FHA and ECOA, and instead substituted “a distinction between unethical discrimination and unlawful discrimination.” The letter expressed concerns that the term “unethical discrimination” is not well established in current law or practice, and could lead to confusion in the appraisal industry. Moreover, the letter noted that “the term ‘ethical’ discrimination, and reference to the possibility of a protected characteristic being ‘essential to the assignment and necessary for credible assignment results,’ appears to resemble the concept of ‘supported’ discrimination that the agencies previously disfavored and whose removal and replacement with a summary of the relevant law significantly improved the draft Ethics Rule.” The agencies further cautioned that “[s]uggesting that appraisers avoid ‘bias, prejudice, or stereotype’ as general norms” would grant individual appraisers wide discretion in applying these norms and likely yield inconsistent results. The agencies advised TAF to provide a thorough explanation of these legal distinctions.
Agencies cite need to update bank merger evaluation framework
On February 10, OCC Senior Deputy Comptroller and Chief Counsel Ben W. McDonough spoke before the OCC Banker Merger Symposium about the future of bank merger policy. Acting Comptroller of the Currency Michael J. Hsu’s prepared remarks, which were delivered on his behalf by McDonough, stressed the need to update the framework used for analyzing bank mergers. Hsu commented that without necessary enhancements, “there is an increased risk of approving mergers that diminish competition, hurt communities, or present systemic risks,” but cautioned that imposing a moratorium on bank mergers would inhibit growth and improvements that could benefit communities and increase competition. Hsu observed that “many experts have raised questions about the ongoing suitability of the current bank merger standards at a time of intense technological and societal change.” He noted that federal bank regulators currently use the Herfindahl–Hirschman Index (HHI) to assess market concentration—which, while transparent, empirically proven, and efficient—may not be as relevant since the bank merger guidelines were last updated in 1995. Hsu reflected that HHI—which is based solely on deposits—may now be “a less effective predictor of competition across product lines” due to the offering of other banking products, including online and mobile banking. Hsu also said that “the current framework for assessing the financial stability risks of bank mergers bears examining,” as “there is a resolvability gap for large regional banks in that our resolution tools may not be up to the task.” Additionally, Hsu pointed out that it is also critical to analyze a merger’s effects on the communities a bank serves, and that assessing each bank’s Community Reinvestment Act performance and ratings are just a starting point.
Separately, Federal Reserve Governor Michelle W. Bowman touched upon the topic of bank mergers during a speech before the American Bankers Association Community Banking Conference. Bowman discussed topics related to the Fed’s independence in bank regulation, predictability in bank merger applications, and tailoring of regulations and supervision. Among other things, Bowman commented that while the bank merger review framework is the same for all applications, each case varies widely, which “necessitates an in-depth review of each transaction on its own merits.” According to Bowman, “these reviews are most effective when the expectations of the regulators are clear in advance and the parties can reasonably anticipate the application review process.” She pointed to a recent increase in average processing times in the merger review process and expressed concerns about how delays may lead to increased operation risk, as well as fears that “the increase in average processing times will become the new normal.” Bowman said she believes that transparency between regulators and applicants can help to ensure clear expectations about certain potential delays.
CFPB finds 33 percent decline in collections tradelines on credit reports
On February 14, the CFPB released a report examining debt collection credit reporting trends from 2018 to 2022. The Bureau’s report, Market Snapshot: An Update on Third-Party Debt Collections Tradelines Reporting, is based on data from the agency’s Consumer Credit Panel—a nationally representative sample of roughly five million de-identified credit records maintained by one of the three nationwide credit reporting companies. According to the report, from Q1 2018 to Q1 2022, the total number of collections tradelines on credit reports declined by 33 percent, from 261 million tradelines in 2018 to 175 million tradelines in 2022. The Bureau determined that this decline was driven by contingency-fee-based debt collectors (responsible for primarily furnishing medical collections tradelines), who furnished 38 percent fewer tradelines during this time period. The total number of unique contingency-fee-based debt collectors also declined by 18 percent (from 815 to 672).
In a related blog post, the Bureau estimated that while medical collections tradelines declined by 37 percent between 2018 and 2022, these tradelines still constitute a majority (57 percent) of all collections on consumer credit reports. The Bureau explained that the “decline may be partly explained by structural dysfunctions in medical billing and collections, which increase the risk that debt collectors will not meet their legal obligations” and can result in false and inaccurate information. The Bureau said it will continue to closely examine medical billing and collection practices and highlighted a bulletin published in January 2022, which reminded debt collectors and credit reporting agencies of their legal obligations under the FDCPA and the FCRA when collecting, furnishing information about, and reporting medical debts covered by the No Surprises Act. (Covered by InfoBytes here.)
Fed cautions banks regarding crypto risks
On February 10, Federal Reserve Board Governor Christopher J. Waller gave a speech on the cryptocurrency ecosystem and digital assets before attendees at the Global Interdependence Center Conference: Digital Money, Decentralized Finance, and the Puzzle of Crypto. Waller provided a broad overview of digital assets and digital ledger technologies and briefly discussed the use of smart contracts in peer-to-peer trading, as well as their potential to automate the execution of certain transactions in non-crypto-assets such as securities transactions. He also highlighted risks associated with another emerging technology—tokenization—which, he explained, “when combined with data vaults to securely store personal information, can be used to trade objects in a way that protects one’s identity from being exploited for profit.” Waller commented that these potential applications could also “lead to substantial productivity enhancements in other industries” beyond the crypto ecosystem.
Waller went on to express support for prudent innovation but expressed concerns about banks engaging in activities that expose them to a heightened risk of fraud, scams, and legal uncertainties. “As with any customer in any industry, a bank engaging with crypto customers would have to be very clear about the customers’ business models, risk-management systems, and corporate governance structures to ensure that the bank is not left holding the bag if there is a crypto meltdown,” Waller stated. “And banks considering engaging in crypto-asset-related activities face a critical task to meet the ‘know your customer’ and ‘anti-money laundering’ requirements, which they in no way are allowed to ignore.”