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OCC addresses technology advances in rulemaking issuances
On June 4, the OCC announced two rulemaking issuances: a Notice of Proposed Rulemaking (NPR) that is intended to eliminate outdated regulatory requirements, and an Advance Notice of Proposed Rulemakings (ANPR) seeking comments on banking issues related to digital technology and innovation.
Specifically, the NPR would amend 12 CFR part 7 to update or eliminate outdated regulatory requirements and clarify and codify recent OCC interpretations related to the modern financial system. Among other things, the changes would include (i) codifying interpretations which permit covered institutions to engage in certain tax equity finance transactions; (ii) clarifying anti-takeover provisions; and (iii) expanding the ability of national banks to choose corporate governance provisions under state law.
The ANPR seeks comment on regulations 12 CFR part 7, subpart E and 12 CFR part 155, and, among other things, asks commenters to discuss (i) whether, in light of technological advances, the legal standards of both regulations are flexible enough; (ii) whether there are digital banking activities not covered by these rules that the OCC should address; (iii) the barriers or obstacles to further adoption of crypto-related activities in the banking industry; and (iv) the potential implications of new payments technologies and processes for the banking industry.
Comments on both issuances are due August 3.
CFPB issues LIBOR transition materials
On June 4, the CFPB released three documents to assist in the LIBOR transition before its anticipated cessation at the end of 2021. Highlights of the documents include:
- Notice of Proposed Rulemaking. The Bureau issued a proposed rule to amend Regulation Z to address the sunset of LIBOR, and to facilitate creditors’ transition away from using LIBOR as an index for variable-rate consumer products. For open-end products, among other things, the proposal would (i) require creditors to include in the change-in-terms notice the replacement index and any adjusted margin; (ii) add a LIBOR-specific provision allowing the LIBOR transition to occur on or after March 15, 2021, as opposed to the current rule’s “no longer available” standard; and (iii) allow creditors to elect a replacement index that is newly established and has no history, or is not newly established and has a history, if certain conditions are met. For closed-end credit, among other things, the proposal provides the Secured Overnight Financing Rate (SOFR) recommended by the Alternative Reference Rates Committee (ARRC) as a “comparable index” to LIBOR. In conjunction with the proposal, the Bureau released a “Fast Facts” high-level summary and an unofficial redline.
- FAQ Guidance. The Bureau released FAQ guidance to address other LIBOR transition topics and regulatory questions that do not require amendments to Regulation Z. Among other things, the FAQs cover general regulatory implementation considerations and specific requirements related to adjustable rate mortgage and HELOC disclosures.
- CHARM Booklet. The Bureau released revisions to their Consumer Handbook on Adjustable Rate Mortgages (CHARM) booklet, which aims to help consumers better understand adjustable rate mortgage loan products. The revisions provide updates based on consumer testing and remove LIBOR-based rate examples.
FHFA final rule updates FHLB housing goals
On June 3, the FHFA published a final rule for the housing goals of the Federal Home Loan Banks (FHLBs) to help underserved borrowers. The final rule’s changes include: (i) eliminating the retrospective evaluation using HMDA data and establishing a single prospective mortgage purchase housing goal at 20 percent of the number of each FHLB’s total Acquired Member Assets mortgage purchases; (ii) establishing a separate small member participation housing goal with a target goal of at least 50 percent; (iii) eliminating the existing $2.5 billion volume threshold and allowing banks to propose alternative target levels for housing goals, subject to public comment and FHFA approval; (iv) capping the extent FHLBs can use loans to higher-income borrowers to meet their housing goals; (v) establishing a process through which FHLBs could propose alternative goals to the prospective goals set in the final rule; and (vi) simplifying and clarifying eligibility criteria for housing goals to enable federally backed loans sold by small institutions to FHLBs to count for goal purposes. The final rule takes effect 60 days after publication in the Federal Register. Written requests from FHLBs proposing alternative target levels are due September 15, 2020. Enforcement will be phased in over three years and will apply to the 2021 - 2023 calendar years.
CFPB updates reverse mortgage servicing examination procedures
On June 1, the CFPB updated its reverse mortgage servicing examination procedures to incorporate current HUD regulations that provide the structure for Home Equity Conversion Mortgage (HECM) products. The updated procedures also add new exam questions to include issues raised in complaints submitted by older consumers. According to the Bureau’s summary, additions to the procedures include: (i) information regarding situations where a “servicer advances funds to pay for property taxes in any situation where the borrower was not behind on these payments”; (ii) guidance concerning a servicer’s timeliness in providing accurate payoff statements; (iii) new language under “Causes of Default” summarizing the circumstances under which an eligible non-borrowing spouse on an HECM loan may stay in the home after the borrower dies, for loans originated on or after August 4, 2014; and (iv) new language in the background section, which “incorporates HUD’s August 2017 regulatory changes that affected the ways in which lenders and servicers calculate the initial and annual mortgage insurance premiums,” as well as additional language “to provide a fuller description of reverse mortgages.”
Federal agencies release host state loan-to-deposit ratios
On June 2, the FDIC, the Federal Reserve Board, and the OCC released the current host state loan-to-deposit ratios for each state or U.S. territory, which the agencies use to determine compliance with Section 109 of the Riegle-Neal Interstate Banking and Branching Efficiency Act of 1994. Under the Act, banks are prohibited from establishing or acquiring branches outside of their home state for the primary purpose of deposit production. Branches of banks controlled by out-of-state bank holding companies are also subject to the same restriction. Determining compliance with Section 109 requires a comparison of a bank’s estimated statewide loan-to-deposit ratio to the yearly host state loan-to-deposit ratios. If a bank’s statewide ratio is less than one-half of the yearly published host state ratio, an additional review is required by the appropriate agency, which involves a determination of whether a bank is reasonably helping to meet the credit needs of the communities served by the bank’s interstate branches.
CFPB updates HMDA Small Entity Compliance Guide
On May 27, the CFPB issued an updated HMDA Small Entity Compliance Guide to reflect the changes made to Regulation C by the April final rule, which permanently raised coverage thresholds for collecting and reporting data about closed-end mortgage loans and open-end lines of credit (covered by InfoBytes here). The final rule, which amends Regulation C, increases the permanent threshold from 25 to 100 loans starting July 1, 2020, for both depository and nondepository institutions. The final rule also increases the permanent threshold for collecting and reporting data about open-end lines of credit from 100 to 200, but this change will not take effect until January 1, 2022, when the current temporary threshold of 500 open-end lines of credit expires. Beginning in 2022, both depository and nondepository institutions that meet this threshold must report data on open-end lines of credit by March 1 of the following calendar year. The Guide also notes the CFPB’s statement that, as of March 26, 2020, it “does not intend to cite in an examination or initiate an enforcement action against any institution for failure to report its HMDA data quarterly.”
OCC issues Comptroller’s Handbook booklet updating sampling methodologies
On May 26, the OCC issued Bulletin 2020-56 announcing the revision of the Sampling Methodologies booklet of the Comptroller’s Handbook. Among other things, the revised booklet (i) discusses the differences between statistical and judgmental sampling; (ii) details the OCC’s statistical sampling methodologies; and (iii) includes look-up tables covering statistical sample sizes and upper confidence bounds. The revised booklet is effective for supervisory activities beginning on or after June 15.
CFTC issues new civil monetary penalty guidance
On May 20, the CFTC’s Division of Enforcement issued new civil monetary penalty guidance—the first such public issuance since 1994. The guidance, which has been incorporated into the Division’s Enforcement Manual, outlines a three-pronged approach enforcement staff will apply when evaluating the appropriate penalty for recommendation to the Commission: (i) “the gravity of the violation,” which may include the nature and scope of a violation, a respondent’s role in the violation, whether the conduct was intentional or willful, and the nature and scope of any consequences resulting from the violations; (ii) “mitigating and aggravating circumstances,” such as a respondent’s post-violation conduct, whether the respondent self-reported the misconduct, the extent of cooperation and remediation, and a respondent’s prior misconduct; and (iii) “other considerations,” including factors such as timely settlements and remedies and monetary relief to be imposed in parallel actions by other criminal authorities or self-regulatory agencies and organizations. “In applying the various factors, staff will be guided by the overarching consideration of ensuring that any proposed penalty achieves the dual goals of specific and general deterrence,” CFTC Director of Enforcement James McDonald stated.
NCUA approves interim final rule regarding corrective action regulations
On May 21, the NCUA approved an interim final rule (IFR) making two temporary changes to its prompt corrective action regulations to provide relief for credit unions that temporarily fall below the well-capitalized level due to the Covid-19 pandemic. The first change will temporarily reduce the earnings retention requirement for “adequately capitalized” credit unions, and will allow these credit union to decrease earnings retention amounts without submitting a written application requesting approval. Credit unions that exhibit material safety and soundness concerns or pose an undue risk to the Share Insurance Fund may be required to submit an earnings transfer waiver request. The second change will temporarily allow undercapitalized credit unions to submit streamlined, “significantly simpler” net worth restoration plans, provided the credit union is able to demonstrate that the reduction in capital was primarily caused by share growth and that such share growth is a temporary condition due to the Covid-19 pandemic. The IFR’s temporary changes will expire December 31, 2020, and take effect upon publication in the Federal Register. Comments will be received for 30 days.
The same day, the NCUA also approved a proposed rule to amend its share insurance regulation, which governs the requirements for a share account to be separately insured as a joint account. Specifically, the proposed rule will provide an alternative method for credit unions to satisfy the membership card or account signature card requirement by “explicitly provid[ing] that the signature-card requirement could be satisfied by information contained in the account records of the insured credit union establishing co-ownership of the share account.” Comments on the proposed rule are due 30 days after publication in the Federal Register.
Special Alert: OCC issues CRA final rule
On May 20, the Office of the Comptroller of the Currency announced a final rule to modernize the regulatory framework implementing the Community Reinvestment Act. The final rule marks the culmination of a three-year effort led by the Treasury Department to revamp the CRA and arrives exactly six weeks after the comment period on the notice of proposed rulemaking (NPR) closed on April 8, 2020.
Significantly, while the Federal Deposit Insurance Corporation joined the OCC in issuing the NPR, the FDIC did not join in promulgating the final rule. The Federal Reserve Board was not party to the NPR or the final rule. Accordingly, banks whose prudential regulator is the FDIC or the Federal Reserve will continue to be subject to the existing CRA regulations.
The OCC’s rule, while technically effective October 1, 2020, provides for at least a 27-month transition period for compliance based on a bank’s size and business model. Large banks and wholesale and limited purpose banks will have until January 1, 2023 to comply, and small and intermediate banks that opt-in to the final rule’s performance standards will have until January 1, 2024. In the interim, a performance evaluation conducted after October 1, 2020, and before January 1, 2023 or 2024, as applicable, would permit banks to rely on the current performance standards and tests or on the final rule.