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Agencies revise reporting guidance during Covid-19 pandemic
On April 7, the Federal Reserve (Fed), FDIC, OCC, CFPB, and NCUA (agencies) issued a revised interagency statement for financial institutions regarding loan modifications for customers affected by Covid-19. As previously covered by InfoBytes, the agencies issued the initial interagency statement on March 22, which stated that the agencies would not require loan modifications made as a result of Covid-19 to be categorized as troubled debt restructurings (TDRs), and additionally that the agencies would not criticize implementation by financial institutions of credit risk mitigation procedures.
Among other things, the revised interagency statement encourages financial institutions to continue to adhere to consumer protection laws, such as fair lending laws, as they assist borrowers who have been negatively impacted by Covid-19. The agencies take a favorable view of loan modification programs intended to assist borrowers affected by Covid-19 and note that financial institutions will not be criticized “for working with borrowers in a safe and sound manner.” In addition, with respect to credit risks, examiners will refrain from issuing automatic adverse risk ratings when reviewing loan modifications impacted by Covid-19. The revised statement explains that the CARES Act created a forbearance program for borrowers affected by Covid-19, and that under Section 4013 of the Act, financial institutions are not required to “report section 4013 loans as TDRs in regulatory reports.” Furthermore, deferrals granted to borrowers affected by Covid-19 do not need to be classified as “past due because of the deferral.”
Federal regulators temporarily lower community bank leverage ratio
On April 6, federal regulators issued two interim final regulatory capital rules that will modify the framework of the Community Bank Leverage Ratio (CBLR) in order to enable qualifying community banking organizations (banks) to support lending during the Covid-19 pandemic. The first rule implements Section 4012 of the CARES Act, making temporary changes to the framework of the CBLR so that banks with a leverage ratio of at least eight percent starting in the second quarter of 2020 “may elect to use the community bank leverage ratio framework.” The rule also provides a two-quarter grace period for community banks whose leverage ratios fall below the eight percent requirement, provided that the bank’s leverage ratio does not fall below seven percent. The second interim final rule allows for the temporary CBLR gradually to transition to eight and one-half percent in 2021, and then back to nine percent at the beginning of 2022.
SEC highlights the need for top-quality financial reporting due to Covid-19
On April 3, the SEC Office of the Chief Accountant (OCA) released a statement regarding “the Importance of High-Quality Financial Reporting in Light of the Significant Impacts of COVID-19.” In the statement, the SEC Chief Accountant states that capital markets cannot function optimally without the free flow of “high quality financial information” that enables informed decision-making from lenders, investors, and other stakeholders. The statement points out that accounting and financial reporting may be challenging due to Covid-19 and that financial institutions may have to make “significant judgments and estimates,” but that the OCA does not intend to oppose “well-reasoned judgments.” Accounting areas that may require these judgments and estimates include (i) “[f]air value and impairment”; (ii) “[l]eases”; (iii) “[d]ebt modifications or restructuring”; (iv) “[h]edging”; (v) “[r]evenue recognition”; (vi) “[g]oing concern”; (vii) “[s]ubsequent events”; and (viii) “[a]doption of new accounting standards.” Regarding auditing, the OCA advises that auditor independence is of paramount importance to financial institutions and notes its willingness to consult on these issues. The statement also emphasizes the OCA’s engagement with the Financial Accounting Standards Board and the Public Company Accounting Oversight Board, as well as with international accounting groups regarding issues created by Covid-19. Finally, the OCA encourages those involved in the financial reporting system to collaborate, and reiterates the OCA’s willingness to answer Covid-19 related questions.
FinCEN issues OCC-backed statement on risk-based BSA reporting during pandemic
On April 3, the Financial Crimes Enforcement Network (FinCEN) updated its guidance from March 16 regarding Bank Secrecy Act (BSA) reporting and Covid-19-related fraudulent transactions and scams, covered by InfoBytes here. The update provides that banks making Small Business Administration Paycheck Protection Program loans will not be required to re-verify beneficial ownership for existing customers. In addition, the update advised that a February Currency Transaction Report ruling regarding filing obligations was suspended until further notice. FinCEN reminded financial institutions that BSA compliance obligations are still in place, and also introduced an online contact mechanism to communicate with FinCEN regarding BSA obligations during the Covid-19 pandemic.
On April 7, the OCC issued Bulletin 2020-34 in support of “FinCEN’s Regulatory Relief and Risk-Based Approach.” The agency urged all financial institutions to observe FinCEN’s risk-based approach to BSA/AML compliance obligations, adding that “[c]ompliance with the BSA remains crucial to protecting national security by combating money laundering and related crimes, including terrorism and its financing, during national emergencies such as the COVID-19 pandemic.” The OCC also stated that it will work with financial institutions impacted by Covid-19 regarding reporting obligations, exams and other concerns.
FDIC extends brokered deposit comment period
On April 3, the FDIC announced the extension of public comment on its notice of proposed rulemaking (NPR) on revisions to the agency’s brokered deposit regulations. Due to challenges associated with the Covid-19 pandemic, the deadline for submitting comments is now June 9. As previously covered by InfoBytes, the NPR would modernize and establish a new framework 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.”
CFTC approves final interpretative guidance on “actual delivery” in virtual currency transactions
On March 24, the CFTC approved final interpretive guidance concerning the term “actual delivery” in the context of retail virtual currency transactions. As previously covered by InfoBytes, the CFTC reaffirmed its belief that virtual currencies are commodities, and thus certain transactions involving these types of currencies are subject to CFTC oversight. In order to demonstrate the “actual delivery” of virtual currency in connection with retail commodity transactions, the final interpretive guidance sets forth two primary factors that market participants must demonstrate:
- A customer has (i) the ability to secure “possession and control of the entire quantity of the commodity, whether it was purchased on margin, by using leverage, or any other financing arrangement”; and (ii) “the ability to use the entire quantity of the commodity freely in commerce (away from any particular execution venue) no later than 28 days from the date of the transaction and at all times thereafter”; and
- “The offeror and counterparty seller (including any of their respective affiliates or other persons acting in concert with the offeror or counterparty seller on a similar basis) do not retain any interest in, legal right, or control over any of the commodity purchased on margin, leverage, or other financing arrangement at the expiration of 28 days from the date of the transaction.”
CFTC Chairman Heath P. Tarbert stated that he anticipates a 90-day period before the CFTC begins initiating enforcement actions related to the final interpretive guidance that may not have been plainly evident in prior guidance, enforcement actions, and case law.
FCC orders phone companies to deploy STIR/SHAKEN framework
On March 31, the FCC adopted new rules that will require phone companies in the U.S. to deploy STIR/SHAKEN caller ID authentication framework by June 30, 2021. As previously covered by InfoBytes, the STIR/SHAKEN framework addresses “unlawful spoofing by confirming that a call actually comes from the number indicated in the Caller ID, or at least that the call entered the US network through a particular voice service provider or gateway.” FCC Chairman Ajit Pai endorsed the value of widespread implementation, stating the framework will “reduce the effectiveness of illegal spoofing, allow law enforcement to identify bad actors more easily, and help phone companies identify—and even block—calls with illegal spoofed caller ID information before those calls reach their subscribers.” The new rules also contain a further notice of proposed rulemaking, which seeks comments on additional efforts to promote caller ID authentication and implement certain sections of the TRACED Act. Among other things, the TRACED Act—signed into law last December (covered by InfoBytes here)—mandated compliance with STIR/SHAKEN for all voice service providers.
Federal agencies extend Volcker Rule comment period
On April 2, the Federal Reserve Board, CFTC, FDIC, OCC, and SEC (agencies) jointly announced that they would extend the comment period to May 1 on their proposal to modify and streamline the “covered funds” requirements under Section 13 of the Bank Holding Company Act, commonly known as the Volcker Rule. As previously covered by InfoBytes, the proposed amendments would, among other things, clarify the regulations concerning covered funds and address certain related issues, including permitting the activities of qualifying foreign excluded funds. The comment period originally was scheduled to end April 1. However, due to potential disruptions as a result of the Covid-19 pandemic, the agencies agreed to extend the comment deadline to May 1.
OCC, FDIC outline SBA relief programs pursuant to the CARES Act
On April 2, the OCC issued Bulletin 2020-31 and the FDIC issued Financial Institution Letter (FIL) 33-2020 to highlight for banks the SBA-relief programs available pursuant to the CARES Act. The bulletin urges banks to utilize the programs to help small businesses that have been financially impacted by Covid-19, adding that the SBA “is streamlining its eligibility criteria and processes to enable more financial institutions to use these programs for eligible small business borrowers.” The guidance highlights three relief programs, including (i) the Paycheck Protection Program (PPP), which is “an expansion of the SBA’s 7(a) loan program” and provides SBA-guaranteed loans to eligible borrowers; (ii) the Economic Injury Disaster Loan and Loan Advance Program, which is also an expansion of a current SBA program—the disaster assistance loan program—where borrowers may receive a loan of up to $2 million for working capital, and up to $10,000 as an advance that the borrower is not required to repay; and (iii) the Debt Relief Program, which provides 6 months of principal, interest and fees on 7(a) loans already in existence or originated prior to September 27.
Additional information on PPP loans can be found on the SBA website here and on the Treasury Department website here. Information about other SBA resources can be found here, and on the FDIC’s Coronavirus Information page here.
SEC chair discusses resources allocations, oversight, and rulemaking
On April 2, SEC Chairman Jay Clayton issued a statement outlining the SEC’s approach to its allocation of resources, oversight, and rulemaking agenda. As previously covered by InfoBytes, the SEC issued guidance last month providing temporary relief and assistance to market participants impacted by the Covid-19 pandemic, including relief from certain notarization requirements and filing deadline extensions. Clayton noted, however, that despite these challenges, the SEC recognized that it is imperative that issuers keep investors equipped with material information, and accordingly has urged public companies to “continue to evaluate their obligations to make materially accurate and complete disclosures in accordance with the federal securities laws.” Among other things, Clayton also reiterated that, while public comments closed recently on several proposed rulemaking actions, the SEC will “not take final action on these items in the coming weeks to allow potential commenters more time to submit comments for consideration if needed.” The SEC does not expect to move forward on any of these proposed actions prior to May 1.
Relatedly, Clayton discussed Regulation Best Interest (Reg BI) and Form CRS, which establish new standards of conduct for broker-dealers and related persons when recommending securities transactions or investment strategies to retail customers. Clayton highlighted the extensive engagement efforts related to the implementation of Reg BI and Form CRS, and encouraged continued engagement with investors and other market participants on these regulatory enhancements. Clayton noted that, in light of these engagement efforts, the June 30 compliance date remains appropriate, and provided a number of resources to assist firms in understanding the new requirements and implementation process.