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CFPB report anticipates data collection on small-business lending
On December 15, the CFPB released a report detailing the results of the panel convened pursuant to the Small Business Regulatory Enforcement Fairness Act (SBREFA), which discussed the Bureau’s pending rulemaking to implement Section 1071 Dodd-Frank Act. Section 1071 requires the Bureau to engage in a rulemaking to collect and disclose data on lending to both women-owned and minority-owned small businesses. In September, the Bureau released a detailed outline describing the proposals under consideration for Section 1071 implementation, including factors such as scope, covered lenders, covered products, data points, and privacy (details covered by InfoBytes here). The October panel was comprised of a representative from the Bureau, the Chief Counsel for Advocacy of the Small Business Administration, and a representative from the Office of Information and Regulatory Affairs in the Office of Management and Budget. The panel consulted with small entity representatives (SERs)—those who would likely be directly affected by the Section 1071 rulemaking—to discuss the economic impacts of compliance with the outline’s proposals, as well as regulatory alternatives to the proposals.
The report includes, among other things, the feedback and recommendations made by the SERs, and the findings and recommendations of the panel. Generally, the SERs were supportive of the proposal with “many expressly support[ing] broad coverage of both financial institutions and products in the 1071 rulemaking.” The SERs backed data transparency and simple regulations but expressed significant concern that the rulemaking would cause smaller financial institutions to “incur disproportionate compliance cost compared to large [financial institutions]” and would ultimately either decrease lending or increase costs for small businesses. The SERs also recommended that the Bureau take into account different types of financial institutions operating in the small business lending market, including non-depository institutions. The report also details specific recommendations by the panel, including that the Bureau issue compliance materials in connection with the rulemaking and consider providing sample disclosure language related to the collection of race, sex, and ethnicity information for principal owners as well as women-owned and minority-owned business status.
Agencies propose computer-security incident notification rule
On December 18, the FDIC, Federal Reserve Board, and the OCC (collectively, “agencies”) issued a joint notice of proposed rulemaking (NPRM), which would require supervised banking organizations to promptly notify their primary regulator within 36 hours of becoming aware that a “‘computer-security incident” that rises to the level of a ‘notification incident’” has occurred. Additionally, the NPRM would require bank service providers “to notify at least two individuals at affected banking organization customers immediately after the bank service provider experiences a computer-security incident that it believes in good faith could disrupt, degrade, or impair services provided for four or more hours.” According to the agencies, these “notification incidents” are significant computer-security incidents that have the potential to “jeopardize the viability of the operations of an individual banking organization,” and may impact the safety and soundness of stability of the banking organization, leading to a disruption in the delivery of bank products and services, among other things. The agencies stress, however, that the required notice is intended to serve as an early alert and not as an assessment of the incident. According to a statement released by FDIC Chairman Jelena McWilliams, only computer-security incidents that meet the definition of a “notification incident” must be reported—a figure which is estimated to be roughly 150 incidents a year, according to a review of supervisory data and suspicious activity reports.
Comments on the NPRM are due 90 days after publication in the Federal Register.
FDIC approves final brokered deposits rule, clarifies fintech partnerships
On December 15, the FDIC approved a final rule, which creates a new framework for brokered deposits by, among other things, establishing bright-line standards for determining the definition of a “deposit broker,” as well as a methodology for “analyzing whether deposits made through deposit arrangements qualify as brokered deposits, including those between insured depository institutions (IDIs) and third parties, such as financial technology companies.” Also released are two fact sheets on brokered deposits and interest rate restrictions (see here and here). The final rule follows a notice of proposed rulemaking issued last December (covered by InfoBytes here), which sought feedback on ways the agency could improve its brokered deposit regulation to ensure the “classification of a deposit as brokered appropriately reflects changes in the banking system, including banks’ use of new technologies to engage and interact with their customers.” The final rule also establishes a series of exceptions that will allow banks and their partners to determine whether they can avoid restrictions on brokered deposits, and will establish a process for entities to apply for a “primary purpose exception” if its relationship with an outside entity supplying deposits does not meet one of the final rule’s “designated exceptions.” Further, the FDIC noted that brokered deposit restrictions will not apply to banks that enter into exclusive deposit placement arrangements, such as those seen often between fintech companies and a partner bank, because, according to a statement released by FDIC Chairman Jelena McWilliams, “[e]ntities who place deposits with only one bank are less likely to present the types of funding stability risks that may arise when deposit brokers place deposits at a range of banks.” Further, the final rule amends the methodology for calculating the interest rate restrictions applicable to less than well capitalized IDIs, and changes the methodology for calculating the national rate and national rate cap for specific deposit products.
Acting Comptroller of the Currency Brian P. Brooks issued a statement in support of the final rule: “These improvements to the brokered-deposit rule help promote greater access to financial services by supporting fintech and bank partnerships and allowing a wider array of services to be available in the market, especially for unbanked and underbanked Americans for whom the easier user interface of fintech apps is a gateway to the mainstream financial system.”
Agencies provide no-action relief to facilitate transfers of certain legacy swaps
On December 11, the Federal Reserve Board and the OCC issued a joint statement addressing the ability of a covered swap entity to service cross-border clients. (See also OCC Bulletin 2020-108.) As previously covered by InfoBytes, the Fed, OCC, FDIC, FHFA, and Farm Credit Administration adopted an interim final rule (IFR) in 2019 to amend the Swap Margin Rule to assist covered swap entities preparing for the United Kingdom’s withdrawal from the European Union. The IFR addresses the situation where the withdrawal occurs without a negotiated agreement and entities located in the UK transfer existing swap portfolios that face counterparties located in the EU over to affiliates located in the US or the EU. Specifically, the IFR provides that certain swaps under this situation will not lose their “legacy” status—will not trigger the application of the Swap Margin Rule—if carried out in accordance with the conditions of the rule. The OCC notes that the absence of an agreement between the UK and the EU that addresses passporting rights (defined in the joint statement as the “EU’s system of cross-border authorizations to engage in regulated financial entities) would result in UK entities losing the ability to continue servicing their EU clients when the transition period expires.
The joint statement explains that the Fed and OCC “will not recommend that their respective agencies take action if a covered swap entity is a party to a legacy swap that was amended under [certain] conditions.” The no-action relief is applicable to the transfer of legacy swaps completed by the later of January 1, 2022, or one year after the expiration of EU passporting rights, unless amended, extended, terminated, or superseded, and is intended “to provide certainty to covered swap entities currently operating in the affected jurisdictions as to the legacy status of transferred swaps in light of the uncertainty regarding whether the EU will agree to a free trade agreement granting UK companies passporting rights related to financial services.”
CFPB amends General QM loan definition, creates definition for Seasoned QMs
On December 10, the CFPB issued two final rules related to qualified mortgage (QM) loans. The first of the two final rules, the General QM Final Rule, amends Regulation Z and revises the definition of a General QM by eliminating the General QM loan definition’s 43 percent debt-to-income ratio (DTI) limit and replacing it with bright-line price-based thresholds. The General QM Final Rule also eliminates QM status resulting solely from loans meeting qualifications for sale to Fannie or Freddie Mac (GSEs), known as the so-called “GSE Patch.” The Bureau’s second final rule, the Seasoned QM Final Rule, creates a new category of safe-harbor QMs applicable to first-lien, fixed-rate mortgages that are held in portfolio by the originating creditor or first purchaser for a 36-month period while meeting certain performance requirements, and comply with general restrictions on product features and points and fees.
Both final rules become effective 60 days after publication in the Federal Register. The mandatory compliance date for the General QM Final Rule is July 1, 2021; however, the Bureau notes that, between the effective date and the mandatory compliance date, there will be an optional early compliance period during which creditors will be able to use either the current General QM definition or the revised General QM definition. In addition, the GSE Patch will be available only for transactions where the creditor receives the consumer’s application before July 1, 2021 (or earlier if the GSEs exit conservatorship). Further, the Seasoned QM Final Rule applies to covered transactions for which creditors receive an application on or after the effective date, but will not apply retroactively to loans already in a lender’s portfolio.
Buckley will follow up with a more detailed summary of the final rules soon.
CFPB releases fall 2020 rulemaking agenda
On December 11, the CFPB released its fall 2020 rulemaking agenda. According to a Bureau announcement, the information details the regulatory matters that the Bureau “expect[s] to focus on” between November 2020 and November 2021. The announcement notes that the Bureau will also continue to monitor the need for further actions related to the ongoing Covid-19 emergency. In addition to the rulemaking activities already completed by the Bureau this fall, the agenda highlights other regulatory activities planned, including:
- Debt Collection. The Bureau notes that it expects to issue a final rule in December 2020 addressing, among other things, disclosures related to validation notices and time-barred debt (proposal covered by a Buckley Special Alert here).
- LIBOR Transition. The Bureau notes that it anticipates publishing the final rulemaking (proposal covered by InfoBytes here) on the LIBOR transition later than the original January 2021 target identified in the Unified Agenda, due to the November 30 announcement by UK regulatory authorities that they are considering extending the availability of US$ LIBOR for legacy loan contracts until June 2023, instead of the end of 2021.
- FIRREA. The Bureau notes that, together with the Federal Reserve Board, OCC, FDIC, NCUA, and FHFA, it will continue to develop a proposed rule to implement the automated valuation model (AVM) amendments made by the Dodd-Frank Act to the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 (FIRREA) concerning appraisals.
- Mortgage Servicing. The Bureau notes that it intends to issue an NPRM in spring 2021 to consider amendments to the Bureau’s mortgage servicing rules to address actions required of servicers working with borrowers affected by natural disasters or other emergencies. The Bureau notes that comments to the interim final rule issued in June 2020, amending aspects of the mortgage servicing rules to address the exigencies of Covid-19 (covered by InfoBytes here), suggest that the rules may need additional updates to address natural disasters or other emergencies.
- HMDA. The Bureau states that two rulemakings are planned, including (i) a proposed rule that follows up on a May 2019 advanced notice of proposed rulemaking, which sought information on the costs and benefits of reporting certain data points under HMDA and coverage of certain business or commercial purpose loans (covered by InfoBytes here); and (ii) a proposed rule addressing the public disclosure of HMDA data.
Fed issues supervisory letter covering appeals process
On December 4, the Federal Reserve Board issued supervisory letter SR 20-28 / CA 20-14, which discusses the internal appeals process for material supervisory determinations and its policy regarding the Ombudsman. As previously covered by InfoBytes, in March, the Fed issued final amendments intended to improve and expedite the appeals process. Among other things, the final amendments (i) clarify that Matters Requiring Attention and Matters Requiring Immediate Attention “are appealable material supervisory determinations”; (ii) “permit an institution’s senior management to file an appeal, provided that management informs the institution’s board of directors of their decision to file an appeal and keeps the board informed of the status of the appeal”; (iii) “permit an institution to request an extension of time to file an appeal in appropriate circumstances”; and (iv) “clarify that, at an institution’s request, the initial review panel must schedule a meeting with the institution.” The amended Ombudsman policy formalizes current practices of the office, including receiving supervisory-related complaints and supervisory determination appeals. The Fed requests that Reserve Banks distribute the supervisory letter covering the appeals process changes to their various supervised institutions and to appropriate supervisory staff.
OCC releases 2021 fees and assessments schedule
On December 1, the OCC issued Bulletin 2020-106, which informs all national banks, federal savings associations, and federal branches and agencies of foreign banks of the agency’s 2021 fees and assessment rates. For 2021, the OCC is reducing the rates in all fee schedules by 3 percent, which “reflects cost savings in the OCC’s operations and projections of the OCC’s revenues and expenses.” Additionally, the OCC notes that for the 2021 assessment year, among other things, (i) there will be no inflation adjustment to assessment rates; (ii) new entrants to the federal banking system will be assessed on a prorated basis using call report information as of December 31 or June 30, depending on the entrance date; and (iii) the hourly fee for special examinations and investigations will increase from $140 to $150. The bulletin takes effect January 1, 2021.
OCC publishes Volcker Rule quantitative measurement instructions
On November 30, the OCC released instructions and technical specifications for preparing and submitting quantitative measurements relating to Section 13 of the Bank Holding Act, commonly known as the Volcker Rule. As previously covered by InfoBytes, in 2019, the OCC, FDIC, Federal Reserve Board, CFTC, and SEC published a final rule amending the regulations implementing the Volcker Rule. Under the amendments, “banking entities with significant trading assets and liabilities” are required to “submit certain quantitative measurements on a quarterly basis and in accordance with the XML schema posted on the OCC’s ‘Volcker Rule Implementation’ web page.” The compliance date for the final rule is January 1, 2021.
OCC finalizes regulatory requirements for covered institutions
On November 23, the OCC announced a final rule that updates and eliminates outdated regulatory requirements for national bank and federal savings association activities and operations. The final rule, originally proposed in June (covered by InfoBytes here), amends 12 CFR 7 to clarify and codify recent OCC interpretations related to the modern financial system. Among other things, the changes will (i) incorporate and streamline interpretations concerning permissible derivatives activities; (ii) codify interpretations which permit covered institutions to engage in certain tax equity finance transactions; (iii) “codify[] interpretations regarding national bank membership in payment systems and clarify[] that federal savings associations are subject to the same requirements as national banks; (iv) “expand[] the ability of national banks and federal savings associations to choose corporate governance provisions under state law; (v) clarify anti-takeover provisions; and (vi) codify National Bank Act interpretations concerning capital stock issuances and repurchases. The final rule takes effect April 1, 2021.