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FDIC proposes revisions to its supervisory appeals process
On August 21, the FDIC announced a proposal to amend the agency’s Guidelines for Appeals of Material Supervisory Determinations (Guidelines) and establish a new, independent Office of Supervisory Appeals (Office) that would replace the current Supervision Appeals Review Committee. The new Office, which will have final authority to resolve appeals, would be independent from other divisions within the FDIC that have authority to issue material supervisory determinations. According to the release, to promote the Office’s independence, the FDIC intends to recruit externally and employ reviewing officials on a part-time or intermittent, time-limited basis. The proposal also includes modifications to the procedures and timeframes regarding when determinations underlying formal enforcement-related actions may be appealed.
Among other things, the proposal would update the Guidelines to clarify that for purposes of the supervisory appeals process, a formal enforcement-related action begins, and appeal rights are temporarily unavailable, when the FDIC: (i) initiates a formal investigation; (ii) issues a notice of charges or notice of assessment, as applicable; (iii) provides an institution with a draft consent order; or (iv) provides written notice stating “that the FDIC is reviewing the relevant facts and circumstances to determine whether a formal enforcement action is merited.” Under the proposal, should the FDIC provide written notice that it is determining whether a formal enforcement action is merited, the agency would be required to provide the institution with a draft consent order within 120 days, as well as an opportunity to engage in settlement negotiations. If the FDIC fails to provide the institution with a draft consent order within the initial 120-day period, supervisory appeal rights would become available to the institution. If a settlement is not reached, the FDIC would have 90 days to issue a notice of charges or assessment or open an order of investigation, or the institution’s supervisory appeal rights would be made available. In either case, once supervisory appeal rights are made available, the institution would have 60 days to file an appeal, which is consistent with the standard timeline for appealing a material supervisory determination. If the institution agrees to the consent order, “then the matter would be resolved and the need for an appeal would be obviated.”
If the proposal is adopted, institutions “would continue to be encouraged to make good-faith efforts to resolve disagreements with examiners or the appropriate regional office or division director.” However, if an institution is unable to resolve a disagreement regarding a material supervisory determination through such efforts, it would be able to appeal that determination to the Office.
Chairman Jelena McWilliams commented that the while the proposal retains several aspects of the existing appeals process—for example, the burden of proof on appeal will continue to rest with the institution—the “proposal seeks to establish a fair, independent process for a bank to appeal material supervisory decisions,” which is “key to promoting consistency among examiners across the country, ensuring accountability at the agency, and, ultimately, maintaining stability and public confidence in the nation’s financial system.” McWilliams added that she does not expect the proposed changes to result “in an avalanche of appeals.”
Comments on the proposal will be accepted until October 20.
FDIC, HUD announce disaster relief guidance for Iowa, California borrowers
On August 26, the FDIC issued FIL-81-2020 to provide regulatory relief to financial institutions and help facilitate recovery in areas of Iowa affected by severe storms. In the guidance, the FDIC notes that, in supervising institutions affected by the severe weather, the FDIC will consider the unusual circumstances those institutions face. The guidance suggests that institutions work with impacted borrowers to, among other things, (i) extend repayment terms; (ii) restructure existing loans; or (iii) ease terms for new loans to those affected by the severe weather, provided the measures are “done in a manner consistent with sound banking practices, can contribute to the health of the local community and serve the long-term interests of the lending institution.” Additionally, the FDIC notes that institutions may receive Community Reinvestment Act consideration for community development loans, investments, and services in support of disaster recovery. The FDIC states it will also consider relief from certain filing and publishing requirements.
Separately, on August 25, HUD announced it will expedite disaster assistance to certain counties impacted by the California wildfires, which will provide foreclosure relief and other assistance to homeowners living in the counties. Specifically, HUD is providing an automatic 90-day moratorium on foreclosures of FHA-insured home mortgages for covered properties and is further making FHA insurance available to those victims whose homes were destroyed or severely damaged. Additionally, HUD’s Section 203(k) loan program will allow victims to finance the purchase or refinance of a house along with the costs of repair through a single mortgage, and will also allow homeowners with damaged property to finance the rehabilitation of their existing single-family homes.
Find continuing InfoBytes coverage on disaster relief guidance here.
Agencies finalize three pandemic-related rules
On August 26, the Federal Reserve Board, FDIC, and OCC finalized three rules that were temporarily issued in March and April to assist financial institutions during the Covid-19 pandemic. Highlights of the three rules include:
- Community Bank Leverage Ratio (CBLR). The agencies adopted, without change, two interim final rules issued in April (covered by InfoBytes here) that temporarily lower the CBLR threshold and provide a gradual transition back to the prior level in order to enable qualifying community banking organizations to support lending during the Covid-19 pandemic. Effective October 1, the final rule, among other things, lowers the leverage ratio to eight percent through 2020 and increases the ratio to 8.5 percent in 2021 and nine percent in 2022.
- Current Expected Credit Losses (CECL). The agencies adopted, without substantial change, an interim final rule issued in March (covered by InfoBytes here), which provides an additional two years to the three-year transition period that is already available to “mitigate the estimated cumulative regulatory capital effects” of CECL. The final rule expands the pool of eligible institutions to include any institution adopting CECL in 2020 and is effective upon publication in the Federal Register.
- Capital distributions. The agencies adopted, without change, an interim final rule issued in March revising the definition of “eligible retained income” to allow for a more gradual application of any automatic limitations on capital distributions if an institution’s capital levels decline below certain levels. Additionally, the final rule includes the adoption of a Federal Reserve-only interim final rule (covered by InfoBytes here), similarly revising the definition of “eligible retained income” for purposes of the total loss-absorbing capacity rule. The final rule is effective January 1, 2021.
State AGs challenge FDIC’s “valid-when-made” rule
On August 20, eight state attorneys general—from California, Illinois, Massachusetts, Minnesota, New Jersey, New York, North Carolina, and the District of Columbia—filed an action in the U.S. District Court for the Northern District of California challenging the FDIC’s valid-when-made rule. As previously covered by InfoBytes, the FDIC’s final rule clarifies that, under the Federal Deposit Insurance Act (FDIA), whether interest on a loan is permissible is determined at the time the loan is made and is not affected by the sale, assignment, or other transfer of the loan (details on the effect of the rule can be found in Buckley’s Special Alert on the issuance of the OCC’s similar rule).
In the complaint—which follows a similar action filed in July by three of the same attorneys general against the OCC for issuing a final rule designed to effectively reverse the Second Circuit’s 2015 Madden v. Midland Funding decision (previously covered here)—the attorneys general argue, among other things, that the FDIC does not have the power to issue the rule, asserting that the FDIC has the power to issue “‘regulations to carry out’ the provisions of the FDIA,” but not regulations that would apply to non-banks. Moreover, the attorneys general assert that the rule’s extension of state law preemption would “facilitate evasion of state law by enabling “rent-a-bank” schemes.” Finally, the complaint states that the FDIC failed to explain its consideration of evidence contrary to its assertions, including evidence demonstrating that “consumers and small businesses are harmed by high interest-rate loans, and thus that Madden is likely to have been beneficial rather than harmful.” The complaint requests the court to declare that the FDIC violated the Administrative Procedures Act in issuing the rule and hold the rule unlawful.
FDIC proposes revisions to MDI statement of policy
On August 21, the FDIC approved a proposed statement of policy, which updates and clarifies the agency’s policies and procedures related to Minority Depository Institutions (MDIs). Among other things, the proposed statement of policy outlines the efforts the agency has undertaken and will continue to take to “preserve and promote” MDIs. Additionally, the proposal defines the program terms for technical assistance, training, educations, and outreach. Finally, the proposal includes a description of the FDIC’s examination rating system for MDIs. Comments on the proposal will be due 60 days after publication in the Federal Register.
Federal agencies and CSBS to hold webinar on PPP
On August 20, the FDIC, Federal Reserve Board, OCC, NCUA, and the Conference of State Bank Supervisors announced that a webinar will be held with SBA officials discussing the loan forgiveness process and recent changes in the Paycheck Protection Program on Thursday, August 27 from 11:00 a.m. to 12:00 p.m. (EDT). Participants must preregister for the webinar and are encouraged to email questions in advance to asktheregulators@stls.frb.org. An archive of the webinar materials will be available here, a few hours after the webinar ends.
Agencies clarify BSA/AML enforcement
On August 13, the OCC, the Federal Reserve Board, the FDIC, and the NCUA (collectively, the “agencies”) issued a joint statement, which clarifies how the agencies apply the enforcement provisions of the Bank Secrecy Act (BSA) and related anti-money laundering (AML) laws and regulations. Specifically, the statement discusses the conditions that require the issuance of a mandatory cease and desist order under sections 8(s) and 206(q). According to the agencies, there are no new exceptions or standards created by document. Among other things, the statement:
- Provides examples of when an agency shall issue a cease and desist order in accordance with sections 8(s)(3) and 206(q)(3) for “[f]ailure to establish and maintain a reasonably designed BSA/AML Compliance Program. The statement notes that an institution would be subject to a cease and desist order when the one component of their compliance program “fails with respect to either a high-risk area or multiple lines of business… even if the other components or pillars are satisfactory.”
- Describes circumstances in which an agency may use its discretion to issue formal or informal enforcement actions related to unsafe or unsound BSA-related practices. The statement notes that the “form and content” of the enforcement action will depend on a variety factors, including “the capability and cooperation of the institution’s management.”
- Describes how the agencies incorporate customer due diligence regulations and recordkeeping requirements as part of the internal controls pillar of an institutions BSA/AML compliance program.
- Discusses the treatment of isolated or technical compliance program requirements that are generally not issues resulting in an enforcement action.
FDIC grants exception requests for certain deposit insurance recordkeeping requirements
On August 4, the FDIC published responses to exception requests pursuant to the Recordkeeping for Timely Deposit Insurance Determination rule (Rule). The notice outlines two time-limited exceptions for covered institutions effective as of July 28. The Rule, codified at 12 CFR Part 370 (and amended last year—covered by InfoBytes here), requires covered institutions to implement information technology systems and recordkeeping capabilities in order to calculate quickly the available amount of deposit insurance coverage for each deposit account in the event of failure. The FDIC allows covered institutions to request an exception from one or more of Part 370’s requirements should circumstances “make it impracticable or overly burdensome to meet those requirements.” Additionally, a covered institution may—upon notice to the FDIC—rely upon another covered institution’s FDIC-granted exception request, if the two institutions have substantially similar facts and circumstances.
The first exception grants an exception of up to 18 months from certain information technology and general recordkeeping requirements to allow covered institutions to perform system updates and remediation efforts to ensure certain sole proprietorship deposit accounts are correctly classified by an institution’s information technology system. The second exception grants an exception of up to 12 months from certain information technology and general recordkeeping requirements “for a limited number of joint accounts that a covered institution has not confirmed are ‘qualifying joint accounts’ entitled to separate deposit insurance coverage.”
FFIEC discusses additional Covid-19 loan accommodations
On August 3, the member agencies of the Federal Financial Institutions Examinations Council (FFIEC) issued a joint statement on managing loan accommodations granted to borrowers pursuant to federal, state, and local law to address Covid-19 related hardships. Specifically, the statement provides risk management and consumer protection principles to financial institutions working with borrowers that are near the end of their initial loan accommodation period. Among other things, the statement outlines:
- Risk Management Practices. The statement encourages financial institutions to institute sound credit risk management practices following an accommodation period, such as “reassess[ing] risk ratings for each loan based on a borrower’s current debt level, current financial condition, repayment ability, and collateral.” Additionally, the statement encourages institutions to provide “clear, accurate, and timely information to borrowers and guarantors regarding the accommodation” being granted.
- Sustainable Accommodations. The statement notes that the Covid-19 pandemic may have “long-term adverse impact[s] on borrower’s future earnings” and financial institutions should consider additional accommodation options to mitigate losses for the borrower and institutions by assessing “each loan based upon the fundamental risk characteristics affecting the collectability of that particular credit.”
- Consumer Protection. The statement encourages financial institutions to provide consumers with options to support repayment at the end of accommodations to avoid delinquencies and to consider offering credit product term changes to “support sustainable and affordable payments for the long term.”
- Accounting and Regulatory Reporting. The statement emphasizes that financial institutions should consider the effects of the Covid-19 pandemic in its allowance for loan and lease losses, or credit losses, estimation processes, consistent with generally accepted accounting principles.
- Internal Control Systems. The statement notes that internal control functions for the end of initial accommodation periods and for additional accommodations typically “include appropriate targeted testing of the process for managing each stage of the accommodation.” Additionally, the statement reminds financial institutions of their responsibility for ensuring service providers in charge of these functions act consistently with the institution’s policies and all applicable laws and regulations.
FDIC finalizes policy statement on bank employment standards
On July 24, the FDIC issued a final rule, which formalizes the agency’s Federal Deposit Insurance Act (FDI Act) Section 19 policy statement covering individuals seeking to work in the banking industry who have been convicted of certain crimes. In general, Section 19 of the FDI Act prohibits, without the prior written consent of the FDIC, any person who has been convicted of any criminal offense involving dishonesty, breach of trust, or money laundering—or who has entered into a pretrial diversion or similar program in connection with such an offense—from participating in the banking industry. In August 2018, the FDIC updated the statement of policy to, among other things, expand the criteria of de minimis offenses for which the FDIC will not require the filing of an application (covered by InfoBytes here), and in November 2019, the FDIC issued the proposed rule to finalize the policy statement (covered by InfoBytes here).
The final rule, among other things, (i) exempts all individuals whose covered offenses have been expunged; (ii) expands the scope of the de minimis exception for certain qualifying offenses involving the use of false or fake identification, as well as for small-dollar, simple theft offenses; (iii) eliminates waiting periods for applicants who have had only one qualifying covered offense; and (iv) allows a person with two de minimis offenses to qualify for the de minimis exception, and decreases the waiting period for two such offenses to three years (or 18 months for those who were 21 or younger at the time of the offense).