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Financial Services Law Insights and Observations

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  • OCC, Federal Reserve Solicit Public Comments on Volcker Rule

    Agency Rule-Making & Guidance

    On August 2, the OCC announced it is seeking public comments on ways to improve regulations implementing the Volcker Rule, however the agency stressed it is not seeking comment on changes to the underlying statute. The draft notice outlines issues with the rule, which bans banks from engaging in proprietary trading and restricts their ownership of certain funds, explaining that there is “broad recognition that the final rule [implementing the Volcker Rule] should be improved both in design and in application.” Referring to the Treasury Department’s June 2017 report, which identified problems with the design of the final rule and offered recommendations for revision, the OCC’s notice asked for suggestions on how to improve implementation with the understanding that any revisions would require a joint undertaking by the OCC, Board of Governors of the Federal Reserve System, the FDIC, and consultation with the SEC and the CFTC. Specifically, the notice seeks comments in the following four areas: (i) scope of entities subject to the final rule; (ii) proprietary trading prohibitions; (iii) covered fund prohibitions; and (iv) requirements for compliance program and metrics reporting.

    Comments must be received within 45 days from publication in the Federal Register.

    Separately, on August 2, the Board of Governors of the Federal Reserve System (Fed) issued a notice seeking comment on whether to extend for three years the Reporting, Recordkeeping, and Disclosure Requirements Associated with Proprietary Trading and Certain Interests in and Relationships with Covered Funds (Regulation VV).  Regulation VV imposes information reporting requirements on certain banks engaged in significant trading activities, to ensure compliance with the Volcker Rule. Among other things, the Fed invited comment on whether the proposed collection of information is necessary and has practical utility, and ways to enhance the quality, utility, and clarity of the collected information, while minimizing the burden on respondents. In its notice, the Fed stated that the information collection “is required in order for covered entities to obtain the benefit of engaging in certain types of proprietary trading or investing in, sponsoring, or having certain relationships with a hedge fund or private equity fund, under the restrictions set forth in [the Volcker Rule].”

    Comments must be received by October 2, 2017.

    Agency Rule-Making & Guidance Department of Treasury OCC Volcker Rule Dodd-Frank Federal Register Securities Federal Reserve

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  • HUD-OIG Report: Single-Family Note Sales Program Failed to Follow Rulemaking Requirements

    Lending

    On July 14, the HUD Office of Inspector General (HUD-OIG) published a report on HUD’s rulemaking process for its single-family note sales program, now referred to as the Distressed Asset Stabilization Program (DASP), under which HUD has sold more than 108,000 notes with over $18 billion in unpaid principal balances. According to the report, HUD-OIG conducted an audit to determine whether HUD adhered to open public rulemaking requirements when it implemented the program. The report concluded that while HUD issued an advance notice of proposed rulemaking in 2006, it did not finalize the comment process or prepare the program for a final rule. The report further stated that there was a lack of formal guidance and procedures for the program, stating that “[s]ince its inception, HUD has issued 31 enhancements, or changes, to its single-family note sales program . . . [but does not have] a handbook or guidebook that establishe[s] its formal requirements or policies for the administration of the program.”

    As a result, HUD-OIG recommended that HUD (i) “[c]omplete the rulemaking process for [its] single-family note sales program,” and (ii) “[d]evelop and implement formal procedures and guidance for the note sales program.”

    Lending HUD Mortgages OIG Federal Register

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  • CFPB Extends Comment Deadline for Small Business Lending Request for Information

    Agency Rule-Making & Guidance

    On July 12, the CFPB issued a notice in the Federal Register announcing that, in response to a request from 13 industry trade associations for an additional comment period extension, the Bureau has extended the comment period of the “Request for Information Regarding the Small Business Lending Market” for another 60 days. As previously covered in InfoBytes, the Bureau is seeking responses to its questions regarding the small business lending market and how the implementation of Section 1071 Dodd-Frank Act will affect small business financing. The Bureau also hopes to receive feedback on privacy concerns related to the Section 1071 disclosures. In light of the extension, comments must now be received by September 14.

    Agency Rule-Making & Guidance Federal Issues CFPB Dodd-Frank Small Business Lending Federal Register

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  • Special Alert: CFPB Proposes Amendments to 2015 HMDA Rule

    Agency Rule-Making & Guidance

    On April 13, the Consumer Financial Protection Bureau (CFPB) issued a proposal to amend the 2015 Home Mortgage Disclosure Act (HMDA) rule. The changes are primarily for the purpose of clarifying data collection and reporting requirements, and most of the clarifications and revisions would take effect in January 2018. Comments on the CFPB’s proposal are due 30 days after publication in the Federal Register.

    The CFPB describes the changes as being non-substantive in nature, noting that the proposal is meant to provide “clarifications, technical corrections, or minor changes.” While we describe the more significant proposed amendments below in greater detail, highlights of the proposal include:

    • Clarification of the definitions of “automated underwriting system,” “closed-end mortgage loan” (specifically, extension of credit), “dwelling” (specifically, multifamily residential structures and communities), “home improvement loan,” and “home purchase loan” (specifically, construction and permanent financing)
    • Permission for institutions to report “not applicable” for loan purpose and the loan originator’s Nationwide Mortgage Licensing System and Registry ID when reporting certain purchased loans originated before Regulation Z’s loan originator rules took effect
    • Clarification of the exclusions for temporary financing and construction loans, commercial or business purpose loans, financial institutions that do not meet the loan-volume threshold, and new funds in advance of consolidation with New York State consolidation, extension, and modification agreements (CEMA)
    • Provision of a safe harbor for bona-fide errors related to incorrect census tract reporting if the institution properly uses the geocoding tool published on the CFPB website


    Click here to read full special alert

    ***

    If you have questions about the amendments or other related issues, visit our Consumer Financial Protection Bureau practice for more information, or contact a Buckley Sandler attorney with whom you have worked in the past.

    Agency Rule-Making & Guidance CFPB HMDA Federal Register Mortgages Special Alerts

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  • Treasury Renews Unchanged Information Collection on Designation of Financial Market Utilities; Seeks Public Comment

    Fintech

    On March 28, the Treasury Department issued a request for comment on its plan to renew an information collection, without change, on the designation of Financial Market Utilities (FMUs) as systemically important financial institutions. According to the Treasury’s notice, the information will be used by the Financial Stability Oversight Council (FSOC) to “determine whether to designate or rescind the designation of an FMU under Title VIII” of the Dodd-Frank Act. The request for comment allows FMUs to submit written materials to the FSOC before the Council makes a designation decision and also permits an FMU to request a hearing or submit materials to contest the FSOC’s proposed determination. Comments on the information collection must be received by April 27, 2017 as instructed on the notice’s publication in the Federal Register.

    Fintech Department of Treasury Federal Register Dodd-Frank FSOC SIFA

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  • CFPB Will Renew Four Advisory Councils

    Agency Rule-Making & Guidance

    On February 23, the CFPB published four notices in the Federal Register to renew three advisory councils and one advisory board for an additional two year period, covering the Academic Research Council, Community Banker Advisory Council, Consumer Advisory Board, and Credit Union Advisory Council. According to each respective notice, these entities have been reestablished for the purposes of providing information and recommendations in accordance with provisions of the Federal Advisory Committee Act. Each notice is effective as of its publication date and charters filed for each entity are set to expire two years after the filing date unless renewed again.

    • The Academic Research Council provides the CFPB’s Office of Research with “advice and feedback on research methodologies, framing research questions, data collection, and analytic strategies.”
    • The Community Banker Advisory Council provides information and recommendations concerning the Bureau’s exercise of its authority under the federal consumer financial laws “as they pertain to banks or thrifts with total assets of $10 billion or less.”
    • The Consumer Advisory Board provides information and recommendations concerning the Bureau’s policy development, rulemaking, and enforcement functions, including on “emerging practices in the consumer financial products or services industry, including regional trends, concerns, and other relevant information.”
    • The Credit Union Advisory Council provides information and recommendations concerning the “Bureau’s policy development, rulemaking, and engagement functions as they relate to credit unions.”

    Agency Rule-Making & Guidance Consumer Finance Advisory Board Advisory Council CFPB Federal Register

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  • FinCEN Proposes SAR Data Fields Revisions

    Agency Rule-Making & Guidance

    FinCEN published, at 82 FR 9109 in the Federal Register, a notice and request for comment on proposed updates and revisions to the collection of information filings by financial institutions required to file such reports under the Bank Secrecy Act (“BSA”). While the notice does not propose any new regulatory requirements or changes to the requirements related to suspicious activity reporting, it suggests changes to the required data fields used when filing SARs under the BSA. The majority of the proposed changes would alter the "checklist" of violations in Part II of the filings, including the addition of several fields related to cyber events. Written comments must be received on or before April 3.

    Agency Rule-Making & Guidance Bank Secrecy Act Federal Register FinCEN

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  • Special Alert: Trump Administration Initiates "Regulatory Freeze"

    Consumer Finance

    On January 20, Reince Priebus, Chief of Staff to President Trump, issued a memorandum to the heads of executive departments and agencies initiating a regulatory review to be headed by the Director of the Office of Management and Budget (“OMB”).  Congressman Mick Mulvaney (R-SC) has been nominated to fill that position.

    On behalf of the President, the memorandum asks the following of the agency and department heads:

    • No new regulations: “[S]end no regulation to the Office of the Federal Register (the ‘OFR’) until a department or agency head appointed or designated by the President after noon on January 20, 2017, reviews and approves the regulation.”
    • Withdraw final but unpublished regulations: “With respect to regulations that have been sent to the OFR but not published in the Federal Register, immediately withdraw them from the OFR for review and approval.”
    • Delay the effective date of published but not yet effective regulations: “With respect to regulations that have been published in the OFR but have not taken effect, as permitted by applicable law, temporarily postpone their effective date for 60 days from the date of this memorandum” and consider notice and comment to further delay the effective date or to address “questions of fact, law, or policy.”  Following the delay, regulations that “raise no substantial questions of law or policy” would be allowed to take effect.  For those regulations that do raise such questions, the agency or department “should notify the OMB Director and take further appropriate action in consultation with the OMB Director.”

    Rulemakings subject to statutory or judicial deadlines are exempt, and the OMB Director has the authority to grant further exemptions for “emergency situations or other urgent circumstances relating to health, safety, financial, or national security matters, or otherwise.”

     

    Click here to read full special alert

     

     

    * * *

     

    If you have questions about the “freeze” or other related issues, visit our Consumer Financial Protection Bureau practice for more information, or contact a BuckleySandler attorney with whom you have worked in the past.

    Consumer Finance CFPB Special Alerts Trump Federal Register OFR

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  • New FHFA Rule Requires Fannie Mae and Freddie Mac to Submit Underserved Markets Plan

    Federal Issues

    FHFA published a final rule in the December 18 Federal Register implementing certain “Duty to Serve” provisions of the Federal Housing Enterprises Financial Safety and Soundness Act of 1992, as amended by the Housing and Economic Recovery Act of 2008. Among other things, these provisions require that Fannie Mae and Freddie Mac adopt formal plans to improve the availability of mortgage financing in a “safe and sound manner” for residential properties that serve “very low-, low-, and moderate-income families” in three specified underserved markets: manufactured housing, affordable housing preservation, and rural markets. FHFA’s new rule addresses this obligation by requiring both Fannie Mae and Freddie Mac to submit to FHFA a three-year “Underserved Markets Plan” that describes the activities and objectives they will undertake to meet their Duty to Serve requirements. The Plans will become effective January 2018, after which time, the new rule requires further that FHFA annually evaluate, rate, and report to Congress each Enterprise's compliance with its Duty to Serve obligations as required by the statute.

    Federal Issues Mortgages Freddie Mac Fannie Mae FHFA Federal Register

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  • ABA Sues Credit Union Regulator Over Field of Membership Rule

    Courts

    On December 7, the American Bankers Association (ABA) filed a lawsuit in federal court seeking to overturn a final rule published by the National Credit Union Administration (NCUA) in that morning’s Federal Register. The final rule purports to “implement changes in policy affecting: The definition of a local community, a rural district, and an underserved area; the chartering and expansion of a multiple common bond credit union; the expansion of a single common bond credit union that serves a trade, industry or profession; and the process for applying to charter, or to expand, a federal credit union.”

    ABA’s law suit contends, among other things, that by “fail[ing] to adhere to the limitations on federal credit unions established by Congress,” the NCUA’s final rule “upsets the balance Congress struck between granting federal credit unions tax-favored status and limiting their operations to carefully circumscribed groups or localities that share a common bond.” Under the final rule, scheduled to take effect Feb. 6, Federal Credit Unions (FCUs) can apply to serve entire geographic regions, so-called “rural districts” up to 1 million people (which include the entirety of Alaska, North Dakota, South Dakota, Vermont or Wyoming), and areas contiguous to their existing service areas. NCUA is also facilitating easier conversions to community charters.

    Courts Banking NCUA Federal Register Agency Rule-Making & Guidance

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