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SEC amends whistleblower rules
On August 26, the SEC adopted two amendments to its whistleblower program rules, which will expand the circumstances in which the Commission can pay whistleblowers for their information and assistance in connection with non-SEC actions, and affirms the Commission’s authority to consider the dollar amount of a potential award for the purposes of increasing, but not decreasing, an award. Specifically, the final rule amends Rule 21F-3 to allow the SEC “to pay whistleblower awards for certain actions brought by other entities, including designated federal agencies, in cases where those awards might otherwise be paid under the other entity’s whistleblower program.” The expanded circumstances contemplated by the SEC include instances “when the other [federal] entity’s program is not comparable to the [SEC]’s program or if the maximum award that the [SEC] could pay on the related action would not exceed $5 million.” The final rule also amends the SEC’s authority under Rule 21F-6 to ”affirm the [SEC]’s authority … to consider the dollar amount of a potential award for the limited purpose of increasing the award.” The amendment “eliminate[s] the [SEC]’s authority to consider the dollar amount of a potential award for the purpose of decreasing the award.” SEC Chair Gary Gensler stated that the amendments “will strengthen [the SEC’s] whistleblower program.” Commissioner Hester M. Peirce in contrast said that while the amendments are “inconsequential” to the success of the whistleblower program, they “carry harmful consequences both for the whistleblower program and for the [SEC]’s rulemaking processes” and “further complicate the already byzantine rules governing [the SEC’s] whistleblower program.”
Fed’s FedNow instant-payments platform to launch mid-2023
On August 29, the Federal Reserve Board announced that its FedNow service will launch mid-year 2023, targeting May to July as the production rollout window for the anticipated instant-payments platform. The FedNow pilot program is scheduled to enter technical testing in September with more than 120 organizations taking part. As covered by a Buckley Special Alert, in May, the Fed issued a final rule for its FedNow service that offers more clarity on how the platform will work. According to the Fed, the FedNow service will be accessible to financial institutions of any size to help expand the reach of instant payments to communities nationwide. FedNow pilot program participants “will complete a certification process to ensure operational and messaging readiness and then move into production once the service is launched,” the Fed said, noting that as the pilot program moves into the testing phase, it will engage non-pilot financial institutions and service providers interested in being early adopters.
“Just as the Federal Reserve has made a substantial commitment to our new instant payment infrastructure, we are calling on industry stakeholders to do the same,” Fed Vice Chair Lael Brainard said during a speech at the FedNow Early Adopter Workshop. “The shift to real-time payment infrastructure requires a focused effort, but the shift is inevitable. The time is now for all key stakeholders—financial institutions, core service providers, software companies, and application developers—to devote the resources necessary to support instant payments.”
Fed issues final rule revising delegations of authority
On August 29, the Federal Reserve Board published a final rule in the Federal Register revising rules regarding delegation of authority. Among other things, the Fed noted that the final rule “enhances transparency, improves usability, and relieves burden on regulated institutions, practitioners before the Board, and Federal Reserve staff.” Specifically, the final rule “codifies and revises delegations of authority previously approved by the Board, makes technical changes, and rescinds moot or superseded delegations.” The final rule also notes that its rules regarding delegation of authority implement section 11(k) of the Federal Reserve Act and enumerate the actions that the Fed has determined to delegate. Section 11(k) authorizes the Fed to delegate, by published order or rule and subject to the Administrative Procedure Act, any of its functions, other than those related to rulemaking or pertaining principally to monetary and credit policies. By delegating actions that do not raise significant legal, supervisory, or policy issues, the Fed can respond more efficiently to applications, requests, and other matters. The final rule is effective September 1.
SEC publishes amendments on disclosures failures
On August 25, the SEC announced proposed amendments to its rules requiring registrants to disclose information reflecting the relationship between executive compensation actually paid by a registrant and the registrant’s financial performance. According to the final rule, registrants would be required to provide a table disclosing specified executive compensation and financial performance measures for their five most recently completed fiscal years. In regard to the measures of performance, a registrant will be required to report its total shareholder return (TSR), the TSR of companies in the registrant's peer group, its net income, and a financial performance measure chosen by the registrant. Using the information presented in the table, registrants will be required to disclose the relationships between the executive compensation actually paid and each of the performance measures, as well as the relationship between the registrant’s TSR and the TSR of its selected peer group. Specifically, large companies would be required to disclose details on executive compensation for the past five fiscal years, and small companies would be required to report the past three fiscal years. Additionally, small companies would be exempt from disclosing details on pensions and peer groups. They also are exempt from new language requiring companies to list the three to seven most important measures linking executive compensation to company performance. Emerging growth companies, registered investment companies, and foreign private issuers are not required to provide the disclosure. The final rules are effective 30 days after publication in the Federal Register, and registrants must comply with the new disclosure requirements in proxy and information statements that are required for fiscal years ending on or after December 16. The same day, the SEC published a fact sheet clarifying, among other things, the final rules implementing the pay versus performance requirement as required by Congress in the Dodd-Frank Act.
FTC will not extend comment period on NPRM seeking to ban auto lending junk fees and bait-and-switch tactics
On August 23, the FTC issued a decision declining to extend the public comment period for its notice of proposed rulemaking (NPRM) to ban “junk fees” and “bait-and-switch” advertising tactics related to the sale, financing, and leasing of motor vehicles by dealers. As previously covered by InfoBytes, the NPRM seeks to prohibit dealers from making deceptive advertising claims to entice prospective car buyers and would also: (i) prohibit dealers from charging fees for “fraudulent add-on products” and services that—according to the FTC—do not benefit the consumer; (ii) require clear, written, and informed consent (including the price of the car without any optional add-ons); and (iii) require dealers to provide full, upfront disclosure of costs and conditions, including the true “offering price” (the full price for a vehicle minus only taxes and government fees), as well as any optional add-on fees and key financing terms. Dealers would also be required to maintain records of advertisements and customer transactions. In declining to extend the comment period, the FTC said the public has been afforded “a meaningful opportunity to provide the Commission with comments regarding its rulemaking proposal.” The comment period will end September 12.
OCC requests comments on various Volcker Rule requirements
On August 23, the OCC published in the Federal Register a request to renew its information collection titled “Reporting, Recordkeeping, and Disclosure Requirements Associated with Proprietary Trading and Certain Interests in and Relationships with Covered Funds.” Section 13 of the Bank Holding Company Act “generally prohibits any banking entity from engaging in proprietary trading or from acquiring or retaining an ownership interest in, sponsoring, or having certain relationships with a covered fund, subject to certain exceptions . . . that allow certain types of permissible trading and covered fund activities.” As previously covered by InfoBytes, in 2019, the OCC, FDIC, Federal Reserve Board, CFTC, and SEC published a final rule amending the Volcker Rule to simplify and tailor compliance with Section 13 of the Bank Holding Company Act’s restrictions on a bank’s ability to engage in proprietary trading and own certain funds.
The OCC is seeking comments specifically related to the reporting, disclosure, documentation and information collection requirements under the rule, including: (i) whether the information collections are necessary for the proper function of the agency and if the information has practical utility; (ii) whether the OCC’s estimates of the burden of the information collections are accurate and the methodology and assumptions used are valid; (iii) measures to enhance the quality, utility, and clarity of the information to be collected; (iv) ways to minimize the burden of information collections on respondents, such as using automated collection techniques or other forms of information technology; and (v) capital or start-up cost estimates, as well as costs of operation, maintenance, and purchase of services to provide information. Comments are due October 24.
FDIC warns financial institutions about NSF fees
On August 18, the FDIC issued FIL-40-2022 along with supervisory guidance to warn supervised financial institutions that charging customers multiple non-sufficient funds (NSF) fees on re-presented unpaid transactions may increase regulatory scrutiny and litigation risk. According to the FDIC, some institutions’ disclosures did not fully or clearly describe their re-presentment practices and failed to explain that the same unpaid transaction may result in multiple NSF fees if presented more than once. Failing to disclose “material information to customers about re-presentment and fee practices has the potential to mislead reasonable customers,” the agency said, noting that the material omission of this information is considered to be deceptive pursuant to Section 5 of the FTC Act. Additionally, “there are situations that may also present risk of unfairness if the customer is unable to avoid fees related to re-presented transactions,” the FDIC said.
The supervisory guidance also discussed the agency’s approach for addressing violations of law, noting that it will focus on identifying re-presentment-related issues to ensure correction of deficiencies and remediation to harmed customers. The agency stated that examiners “will generally not cite UDAP violations that have been self-identified and fully corrected prior to the start of a consumer compliance examination,” and noted that it “will consider an institution’s record keeping practices and any challenges an institution may have with retrieving, reviewing, and analyzing re-presentment data, on a case-by-case basis, when evaluating the time period institutions utilized for customer remediation.” However, the FDIC warned that “[f]ailing to provide restitution for harmed customers when data on re-presentments is reasonably available will not be considered full corrective action.” Financial institutions are encouraged to review practices and disclosures related to the charging of NSF fees for re-presented transactions and should consider FDIC risk-mitigation practices to reduce the risk of customer harm and potential violations.
FCC signs robocall enforcement MOU with Canada
Recently, the FCC announced that it entered into a memorandum of understanding (MOU) with the Canadian Radio-television and Telecommunications Commission (CRTC) to develop a global and coordinated approach for addressing unlawful automated telephone calls. According to the MOU, the FCC and CRTC understand that it is in their common public interest to, among other things: (i) “cooperate with respect to the enforcement against Covered Violations, including sharing complaints and other relevant information and providing investigative assistance”; (ii) “facilitate research and education related to unlawful robocalls and caller ID spoofing”; (iii) “facilitate mutual exchange of knowledge and expertise through training programs and staff exchanges”: (iv) encourage awareness of economic and legal conditions and theories related to the enforcement of applicable laws as identified in Annex 1 to the MOU; and (v) update each other regarding developments related to the MOU in their respective countries in a timely manner. In a related statement, FCC acting Chairwoman Rosenworcel noted that robocall scamming is an “international problem,” and that it is “critical that we work closely with partners like our colleagues in Canada who share our commitment to fighting robocall scams and unmasking the bad actors behind them.”
FHFA, Ginnie Mae update minimum financial eligibility requirements for enterprise seller/servicers and issuers
On August 17, FHFA and Ginnie Mae released a joint announcement regarding updated minimum financial eligibility requirements for seller/servicers and issuers. Ginnie Mae also updated its requirements for servicers of Ginnie Mae mortgages in coordination with FHFA. According to the standards, sellers and servicers will be required to maintain a base net worth of $2.5 million plus 35 basis points of the unpaid principal balance for Ginnie Mae servicing and 25 basis points of the unpaid principal balance for all other 1-to-4-family loans serviced. Fannie and Freddie sellers and servicers would be required to maintain a capital ratio of tangible net worth to total assets that is greater than or equal to 6 percent. Depository institutions would continue to rely on their prudential regulatory standards to meet the GSEs’ capital and liquidity requirements. According to HUD Secretary Marcia L. Fudge, the standards “ensure that we continue to address the needs of underserved communities through easy, equitable and sustained access to mortgage credit.” FHFA also released FAQs regarding the seller/servicer minimum financial eligibility requirements, and Ginnie Mae released eligibility requirement comparison tables.
Fed urges banks to assess legality of crypto activities
On August 16, the Federal Reserve Board issued supervisory letter SR 22-6 recommending steps that Fed-supervised banking organizations engaging or seeking to engage in crypto-asset-related activities should take. The Fed stressed that organizations must assess whether such activities are legally permissible and determine whether any regulatory filings are required under the federal banking laws. Organizations should also notify the regulator and “have in place adequate systems, risk management, and controls to conduct such activities in a safe and sound manner” prior to commencing such activities. Risk management controls should cover, among other things, “operational risk (for example, the risks of new, evolving technologies; the risk of hacking, fraud, and theft; and the risk of third-party relationships), financial risk, legal risk, compliance risk (including, but not limited to, compliance with the Bank Secrecy Act, anti-money laundering requirements, and sanctions requirements), and any other risk necessary to ensure the activities are conducted in a manner that is consistent with safe and sound banking and in compliance with applicable laws, including applicable consumer protection statutes and regulations,” the supervisory letter explained, adding that state member banks are also encouraged to contact their state regulator before engaging in any crypto-asset-related activity. Organizations already engaged in crypto activities should contact the Fed “promptly” if they have not already done so, the agency said, noting that supervisory staff will provide any relevant supervisory feedback in a timely manner.
The supervisory letter follows an interagency statement released last November by the Fed, OCC, and FDIC (covered by InfoBytes here), which announced the regulators’ intention to provide greater clarity on whether certain crypto-asset-related activities conducted by banking organizations are legally permissible.