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OCC updates bank accounting guidance
On August 16, the OCC released an annual update to its Bank Accounting Advisory Series (BAAS). Intended to address a variety of accounting topics and promote consistent application of accounting standards and regulatory reporting among OCC-supervised banks, the BAAS reflects updates to accounting standards issued by the Financial Accounting Standards Board through March 31, 2021, related to, among other things, (i) the amortization of premiums on callable debt securities; and (ii) evaluating goodwill impairment triggering events for private companies. The 2021 edition also includes answers to frequently asked questions from industry and bank examiners. Additionally, the OCC notes that the BAAS does not represent OCC rules or regulations but rather “represents the Office of the Chief Accountant’s interpretations of generally accepted accounting principles and regulatory guidance based on the facts and circumstances presented.”
OCC updates Liquidity booklet
On August 16, the OCC issued Bulletin 2021-38 announcing the updated version of the Liquidity booklet of the Comptroller’s Handbook. The booklet replaces the 2012 version and provides information and examination procedures on liquidity coverage ratio and net stable funding ratio requirements. Among other things, the revised booklet: (i) discusses risks associated with liquidity; (ii) reflects changes in regulations and relevant OCC issuances since 2012; and (iii) clarifies edits on supervisory guidance, sound risk management practices, and legal language.
OCC updates CRA, FHA, and ECOA notices
On August 5, the OCC issued Bulletin 2021-35, which informs national banks, federal savings associations, and federal branches and agencies of foreign banking organizations (collectively, banks) of the names and addresses for notices required by the CRA, ECOA, and for posters under the Fair Housing Act. Banks are required to make the appropriate changes to their notices and posters, as necessary, within 90 days of August 5.
This bulletin rescinds OCC Bulletin 2011-41, “Community Reinvestment Act Notices, Fair Housing Act Posters, Equal Credit Opportunity Act Notices: Guidance.”
OCC issues bulletin to community banks on SBA lending activities
On August 5, the OCC issued Bulletin 2021-34 to inform banks and examiners on risk management principles consistent with safe and sound banking practices when engaging in SBA guaranteed lending programs. According to the OCC, “[a] bank’s SBA lending activities, including purchasing investments backed by SBA-guaranteed loans, should be consistent with the bank’s overall business plans, strategies, risk appetite, and sound risk management.” The bulletin notes that primary risk areas associated with SBA lending activities are credit, operational, compliance, liquidity, price, and strategic risks. The bulletin also highlights sound risk management principles, such as strategic planning, policies and processes, personnel, and control systems, and highlights that the bank’s board “should have satisfactory knowledge of and engage in sound oversight of SBA lending.”
Regulators discuss CRA modernization
On August 3, the Senate Committee on Banking, Housing, and Urban Affairs held a hearing entitled “Oversight of Regulators: Does our Financial System Work for Everyone?” which, among other things, highlighted the future of the CRA. OCC acting Comptroller of the Currency Michael Hsu discussed that the OCC has an aggressive timeline for collaborating with the Federal Reserve and FDIC to release joint rulemaking that modernizes the CRA. In his written testimony, Hsu noted that the OCC is “working to strengthen regulations implementing the [CRA],” such as the May announcement regarding reconsideration of the 2020 final rule overhauling the CRA (covered by InfoBytes here) and calling to prohibit discriminatory practices while promoting financial inclusion and increased access to credit for the unbanked and underbanked. During the hearing, Hsu also pointed out that the CRA is a “complicated law,” so groups “are working pretty much around the clock on coming up with options to strengthen the CRA to make sure that low and moderate-income communities have their needs met.” FDIC Chairman Jelena McWilliams also discussed that the FDIC has engaged in a multi-year, interagency effort to examine alterations to CRA regulations “that would benefit low- and moderate-income communities and modernize the rules for the first time in a quarter of a century.”
OCC outlines EFTA remittance transfer examination procedures
On August 2, the OCC issued Bulletin 2021-33, which outlines supplemental examination procedures on remittance transfers used by OCC examiners and rescinds certain related booklets and bulletins. The examination procedures supplement EFTA procedures issued by the Federal Financial Institutions Examination Council that were adopted by the OCC in 2019 and address several provisions for implementing Regulation E’s requirement to disclose the exact cost of remittance transfers. These include: (i) a safe harbor threshold increase, which “excludes certain banks from the requirements for a bank that provides remittance transfers for consumers in the normal course of the bank’s business,” and (ii) certain allowable exchange rate and third-party fee disclosure exceptions. The bulletin also provides a summary of the CFPB’s Regulation E amendments concerning remittance transfers that took effect July 2020 (covered by InfoBytes here).
Agencies clarify LIBOR transition on regulatory capital instruments
On July 29, the FDIC, Federal Reserve Board, and OCC (see FDIC FIL-54-2021, Fed SR 21-12, and OCC Bulletin 2021-32) provided answers to frequently asked questions (FAQs) about the impact on regulatory capital instruments under 12 CFR 324 when transitioning from LIBOR to another reference rate. Among other things, the agencies clarified that “such a transition would not change the capital treatment of the instrument, provided the alternative rate is economically equivalent with the LIBOR-based rate.” Specifically, the FAQs clarify that the agencies do “not consider the replacement or amendment of a capital instrument that solely replaces a reference rate linked to LIBOR with another reference rate or rate structure to constitute an issuance of a new capital instrument for purposes of the capital rule.” Additionally, such a replacement or amendment would not create an incentive to redeem, provided “there are no substantial differences from the original instrument from an economic perspective.” Supervised financial institutions should conduct an appropriate analysis demonstrating that the replacement or amended instrument is not substantially different from the original instrument from an economic perspective and may be asked to provide the analysis to the agencies. “Considerations for determining that a replacement or amended capital instrument is not substantially different from the original instrument from an economic perspective could include, but are not limited to, whether the replacement or amended instrument has amended terms beyond those relevant to implementing the new reference rate or rate structure,” the FAQs state.
Find continuing InfoBytes coverage on LIBOR here.
OCC takes measures to address climate change risks
On July 27, the OCC appointed Darrin Benhart as its Climate Change Risk Officer and announced its membership in the Network of Central Banks and Supervisors for Greening the Financial System (NGFS). OCC’s membership in NGFS will allow the agency to collaborate with central banks and peer supervisors, share best practices, and contribute to the development of climate risk management in the financial sector. The appointment of Benhart to the newly created position “will significantly expand the agency’s capacity to collaborate with stakeholders and to promote improvements in climate change risk management at banks,” acting Comptroller Michael J. Hsu stated, adding that Benhart “brings a wealth of supervisory, policy, and leadership experience to the role.” Hsu emphasized that “[p]rudently managing climate change risk is a safety and a soundness issue,” noting that these changes “will enable the agency to be more proactive in accelerating the development and adoption of robust climate change risk management practices, especially at the larger banks.”
OCC to rescind CRA final rule as agencies signal joint overhaul
On July 20, the OCC announced it will propose to rescind the agency’s May 2020 final rule overhauling the Community Reinvestment Act (CRA), signaling the OCC’s intention to collaborate with the Federal Reserve Board and the FDIC on a separate joint rulemaking. As previously covered by a Buckley Special Alert, the OCC’s final rule was intended to modernize the regulatory framework implementing the CRA by, among other things: (i) updating deposit-based assessment areas; (ii) mandating the inclusion of consumer loans in CRA evaluations; (iii) including quantitative metric-based benchmarks for determining a bank’s CRA rating; and (iv) including a non-exhaustive illustrative list of activities that qualify for CRA consideration.
The announcement follows the completion of a review undertaken by acting Comptroller Michael Hsu (covered by InfoBytes here). Hsu stated that although “the OCC deserves credit for taking action to modernize the CRA,” the adoption of the final rule was “a false start” in attempting to overhaul the regulation. According to Hsu, the OCC intends to work with the Fed and the FDIC to develop a joint Notice of Proposed Rulemaking and build on an Advance Notice of Proposed Rulemaking issued by the Fed last September (covered by InfoBytes here). The federal agencies issued an interagency statement noting that they have “broad authority and responsibility for implementing the CRA” and that “[j]oint agency action will best achieve a consistent, modernized framework across all banks to help meet the credit needs of the communities in which they do business, including low- and moderate-income neighborhoods.”
Fed, OCC report on health of MDIs
Recently, the Federal Reserve Board and the OCC issued reports pursuant to Section 367 of the Dodd-Frank Act generally detailing the health of Minority Depository Institutions (MDIs) and the agencies’ efforts taken to assist MDIs as the Covid-19 pandemic disproportionately affected low- and moderate-income communities and racial and ethnic minorities. The Fed’s report, “Promoting Minority Depository Institutions,” discussed, among other things, extra steps taken by the agency to support and assist MDIs over the past year, which included conducting individualized outreach on several topics like how to access the discount window and the Paycheck Protection Program Liquidity Facility (covered by InfoBytes here and here). The report also examined efforts taken by the Fed to preserve and promote MDIs through its Partnership for Progress program—“a national outreach effort to help MDIs confront unique business-model challenges, cultivate safe banking practices, and compete more effectively in the marketplace”—and covered the Fed’s unanimous approval last September to approve an Advance Notice of Proposed Rulemaking on modernizing the Community Reinvestment Act (covered by InfoBytes here).
The OCC outlined actions taken to preserve and promote MDIs in its “2020 Annual Report,” including the launch of the Roundtable for Economic Access and Change known as Project REACh (covered by InfoBytes here). OCC subject matter experts also provided regulatory technical assistance to MDIs on topics including safety and soundness, cybersecurity, compliance with Bank Secrecy Act/anti-money laundering requirements, and current expected credit loss accounting methodology, among others. The OCC also noted that despite a seven-basis-points drop on the average return on assets for MDIs through the pandemic, the health of those institutions “remained satisfactory.”