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On March 26, the OCC issued Bulletin 2020-26 announcing the revision of the Interest Rate Risk booklet of the Comptroller’s Handbook, which replaces the June 1997 version of the same name. The revised booklet “incorporates and reflects applicable statutes and regulations, guidance, and examination procedures,” and expands model risk and model risk management discussions, “including developing, reviewing, and stress testing model assumptions.” The revised booklet also provides guidelines “consistent with the Pillar 2 supervisory approach outlined in the Basel Committee on Banking Supervision’s Interest Rate Risk in the Banking Book.”
On March 18, the Financial Stability Board (FSB) released a letter previously sent to G20 Finance Ministers and Central Bank Governors on March 13, which set forth priorities designed to “reinforce the G20’s objective of strong, sustainable and balanced growth.” Among other things, FSB presented its initial assessment that “crypto-assets do not pose risks to global financial stability at this time” due to their “small size” and “limited use for real economy and financial transaction”; however, FSB stressed that this assessment is subject to change should crypto-assets become more widely used or integrated within the regulated financial system. “Crypto-assets raise a host of issues around consumer and investor protection, as well as their use to shield illicit activity and for money laundering and terrorist financing,” the letter stated. “At the same time, the technologies underlying them have the potential to improve the efficiency and inclusiveness of both the financial system and the economy.” The letter also described priority deliverables FSB planned to implement, such as (i) Basel III banking reforms; (ii) policy to de-risk correspondent banking; (iii) a toolkit on governance measures to address misconduct risk; (iv) evaluations of certain financial reforms; and (v) a financial sector cybersecurity lexicon. The FSB also noted that it would continue to shift away from policy development and instead focus on the transparency and efficiency of its existing programs.
Basel Committee on Banking Supervision Issues Consultative Document on Implications of Fintech for the Banking Industry
As waves of innovative financial technology (fintech) continue to reshape the financial services landscape, banking institutions and their supervisors have invested significant effort in analyzing its impact and developing an appropriate response. On August 31, the Basel Committee on Banking Supervision (BCBS), the primary global standard setter for the prudential regulation of banks, weighed in. Through the release of a consultative document, Sound Practices: Implications of fintech developments for banks and bank supervisors, the BCBS identified 10 key observations, accompanied by 10 recommendations, for banks and bank supervisors to address the challenges posed by advances in fintech.
The report summarizes the main findings of a BCBS task force established to analyze developments in fintech and their impact on the banking industry. Quantifying the size and growth of fintech is difficult; among other reasons, most jurisdictions have not formally defined “fintech” (notably, the report includes a glossary of terms and acronyms related to the delivery of fintech products and services, and is the first attempt by the BCBS to provide a common definition in this space). Yet the significant number of financial products and services derived from fintech innovations and the trend of rising investment in fintech companies globally warrants attention. As the BCBS acknowledges, while the impact of fintech on banking remains uncertain, “that change could be fast-paced and significant.”
In its report, the BCBS observes that the rise of fintech innovation has resulted in “a battle for the customer relationship and customer data,” the result of which “will be crucial in determining the future role of banks.” To assess the impact of the evolution of fintech products and services, the BCBS identified five stylized scenarios describing the potential impact of fintech on banks. In addition, the BCBS assessed six case studies focused on specific innovations (e.g., big data, cloud computing, innovative payment services, and neo-banks), in order to understand the individual risks and opportunities of a specific fintech development through the different scenarios. The extent to which banks or new fintech entrants will own the customer relationship varied across each scenario. However, in almost every scenario, the position of the incumbent banks will be challenged. The BCBS finds that “a common theme across the various scenarios is that banks will find it increasingly difficult to maintain their current operating models, given technological change and customer expectations.”
In analyzing fintech’s potential impact, the BCBS analyzes previous waves of innovation in banking, such as ATMs, electronic payments, and the Internet. While each of these have changed the face of banking, the BCBS highlights two key differences as it concerns fintech’s potential impact: the current pace of innovation is faster now than in previous decades and the pace of adoption has also increased. As a result, the Committee warns, “the effects of innovation and disruption can happen more quickly than before, implying that incumbents may need to adjust faster.”
The BCBS stated that banking standards and supervisory expectations “should be adaptive to new innovations, while maintaining appropriate prudential standards.” Against this backdrop, the Committee concluded its report with 10 key observations and recommendations for consideration by banks and bank supervisors.
- The overarching need to ensure safety and soundness and high compliance standards without inhibiting beneficial innovation in the banking sector;
- Key risks for banks related to fintech developments, including strategic/profitability risks, operational, cyber and compliance risks;
- Implications for banks of the use of innovative enabling technologies;
- Implications for banks of the growing use of third parties, via outsourcing and/or partnerships;
- Cross-sectoral cooperation between supervisors and other relevant authorities;
- International cooperation between banking supervisors;
- Adaptation of the supervisory skillset;
- Potential opportunities for supervisors to use innovative technologies ("suptech");
- Relevance of existing regulatory frameworks for new innovative business models; and
- Key features of regulatory initiatives set up to facilitate fintech innovation.
By issuing this guidance, BCBS is prompting global regulators to address technological advancements and novel business models with the same sense of urgency that the banking and fintech industries are employing. It will be incumbent on the financial services industry – traditional and novel business models alike – to work together to inform and shape what those supervisory guidelines will look like.
Comments on BCBS’s consultative document will be accepted through October 31, 2017.
Federal Banking Regulators Issue Proposal to Simplify Capital Requirements to Provide Regulatory Relief to Community Banks
On August 22, the Federal Reserve, FDIC and OCC issued a proposed rule that capital requirements set to take effect in January 2018 would be suspended under a proposed rule for banking organizations not subject to the advanced approaches capital rules, such as community and midsized banks— generally those with less than $250 billion in total assets and fewer than $10 billion in foreign exposure. The federal banking regulators proposed the suspension as they develop a proposal that would simplify capital requirements to reduce regulatory burden. Banks subject to the advance approaches capital rules will still be required to comply with the capital rule requirements taking effect January 1, 2018. The proposal would pause the fully phased-in Basel III requirements regarding the treatment of mortgage servicing assets, certain deferred tax assets, investments in the capital instruments of unconsolidated financial institutions, and minority interests (see FDIC Financial Institution Letter FIL-34-2017). According to a press release issued by the FDIC, “the transitional treatment for those items is scheduled to be replaced with a different treatment on January 1, 2018.” FDIC Vice Chairman Thomas M. Hoenig issued a statement supporting the proposal but pushed for the need to provide additional relief for community banks such as predicating relief based on banking activities and tangible equity rather than asset size.
Comments on the proposed rule are due 30 days after publication in the Federal Register.
On June 26, the Federal Reserve fined a New York-based bank $3 million for unsafe and unsound banking practices after the firm allegedly assigned a lower risk weighting to a portfolio of assets in violation of then-applicable Basel I regulatory risk capital requirements. According to the consent order, between 2010 and 2014, the bank consolidated a portfolio of collateralized loan obligations onto its balance sheet. It allegedly assigned a zero-risk weighting to the assets improperly, and therefore overstated its risk-based capital ratios and set aside less capital than it should have.
On November 21, the Financial Stability Board, in consultation with the Basel Committee on Banking Supervision and national authorities, released its updated 2016 list of G-SIBs and 2016 list of G-SIIs. Each of the new 2016 lists comprise the same banks/insurers as those on their respective 2015 list. The Basel Committee also released the following additional information related to its 2016 G-SIB assessment: (i) a list of all the banks in the assessment sample; (ii) the denominators of each indicator used to calculate the banks' scores; (iii) the cutoff score that was used to identify the G-SIBs in the updated list; (iv) the thresholds used to allocate G-SIBs to buckets for the purpose of calculating the specific higher loss absorbency requirements; and (v) links to disclosures of all banks in the assessment sample.
FDIC Vice-Chairman Thomas M. Hoenig spoke at the 22nd Annual Risk USA Conference in New York on November 9. He delivered prepared remarks on “Strengthening Global Capital: An Opportunity Not To Be Lost.” Hoenig discussed his views on key factors at the core of the debate over what defines adequate capital. Specifically, he discussed the controversy over alternative measurements for judging adequate capital currently being considered by the Basel Committee, which he believes will weaken current standards and ultimately justify lower levels of capital. According to Hoenig, “[m]omentum is developing within the Basel Committee to undermine measures that could increase bank capital levels, and some jurisdictions are threatening to walk away if the measures are thought too strict.” Hoenig recommended that the United States “should avoid joining this race to the bottom.”
On November 15, the OCC published a notice and request for comment on proposed changes to its rules requiring certain covered financial institutions, including national banks and federal savings associations with assets over $50 billion, to report certain financial information as part of stress testing. The proposed revisions to the OCC’s reporting requirements are “intended to promote consistency with” the Fed’s proposed changes to its form FR Y-14A, and consist generally of clarifying instructions, shifting the “as-of date”, adding data items, deleting data items, and redefining existing data items—including an expansion of the information collected in the scenario schedule. The proposed revisions also reflect the implementation of the final Basel III regulatory capital rule, which is set to revise and replace the OCC’s risk-based and leverage capital requirements to be consistent with agreements reached by the Basel Committee on Banking Supervision in ‘‘Basel III: A Global Regulatory Framework for More Resilient Banks and Banking Systems’’ (Basel III). All comments must be received by January 19, 2017.
On September 8, the Federal Reserve Board (FRB) released a policy statement providing details regarding its Countercyclical Capital Buffer Framework (Framework). The FRB explained that the Framework is designed to implement requirements under the Basel III International bank capital rules, and will generally raise capital holding requirements for internationally active banks when there is an elevated risk of systemic credit losses. In responding to comments, the FRB used the policy statement to clarify that when the systemic threat is reduced, banks would be allowed to release excess capital into the economy to further create financial stability. Meanwhile, the Group of Central Bank Governors and Heads of Supervision (Group) that oversees the Basel Committee on Banking Supervision (Committee) cautioned the Committee to avoid significant increases in overall bank capital requirements as the Committee creates a final rule to address excessive variability in risk-weighted assets. The Group expressed its desire that the Committee focus on improving and harmonizing the methods through which banks determine their own risks. The Committee’s final rule is due by year’s end.
On July 25, the GAO released a report titled “Mortgage Servicing: Community Lenders Remain Active under New Rules, but CFPB Needs More Complete Plans for Reviewing Rules.” At the request of the House Committee on Financial Services, the GAO report outlines and analyzes the effect of the CFPB’s 2013 mortgage-servicing rules and the banking regulators’ implementation of the Basel III framework on credit unions and community banks’ (collectively, community lenders) mortgage servicing activities. Specifically, the GAO report examines (i) community lenders’ participation in the mortgage servicing market, as well as the potential effect of the new mortgage servicing rules on them; (ii) the potential impact that the Basel III framework could have on community lenders’ decisions to hold or sell Mortgage Servicing Rights (MSR); and (iii) regulators’ processes for estimating the impact of the new regulations.
Overall, the GAO report suggests that community lenders’ decisions to sell or hold MSRs likely will not be affected by the new capital treatment of MSRs under the Basel III framework because their concentration of MSRs is limited: “Most representatives of community banks said that regulatory changes to the capital treatment of MSRs did not require them to sell MSRs or raise additional capital.” Although officials from two community banks with larger concentrations of MSRs suggested that “the rules would prevent the bank from growing as much as it would like,” the GAO concludes that community lenders’ participation in MSR sales is based on several factors other than MSR capital treatment, including volatility in the value of MSRs, compliance risk, and interest rates and prepayments.
According to the report, the new mortgage servicing regulations increased compliance costs for community lenders, but have yet to affect adversely their participation in the mortgage servicing market. In fact, the GAO found that, between 2008 and 2015, the share of mortgages serviced by community lenders doubled. The report states that community lenders continue to service mortgage loans held in portfolio or hold MSRs, despite the increase in regulatory requirements and compliance costs, because such activities generate income and help them to maintain strong customer relationships. Regarding profitability, representatives from one credit union noted that “servicing mortgages provides it with the opportunity to develop borrowers into full members with checking and savings accounts and car loans.” Community lenders further highlighted the significance of working directly with customers encountering errors or difficulty during the loss mitigation process: “Representatives at several industry associations and community lenders [told the GAO] that community banks and credit unions preferred to retain MSRs even if they sold the mortgages in the secondary market because they were able to maintain close customer contact should issues arise.” The report recognizes that, for community lenders servicing 5,000 or fewer mortgages, the CFPB’s exemptions for small servicers and creditors were helpful to their businesses and customers. Still, some community lenders reported having to adjust their business practices to manage increased compliance costs, highlighting increases in fees and interest rates, as well as changes to product offerings.
Pursuant to the Dodd-Frank Act, the CFPB must retrospectively review the effectiveness of its mortgage servicing rules by January 2019. According to the report, as of April 2016, the CFPB’s plans for retrospective review are incomplete because agency officials determined that, among other things, it was “too soon to identify the relevant data and because the agency wanted the flexibility to design the most effective method to analyze the rules.” The report states that, without having finalized a review plan, including outlining its proposed methodologies for seeking public input, the CFPB risks not having sufficient time to complete an effective review. As such, the GAO recommends that the CFPB “complete a plan to identify the outcomes [it] will examine to measure the effects of the regulations, including the specific metrics, baselines, and analytical methods to be used.”
- Daniel R. Alonso to discuss internal investigations at the Institute of Internal Auditors of Argentina Spanish-language webinar
- Jonice Gray Tucker to discuss “Fintech trends” at the BIHC Network Elevating Black Excellence Regional Summit
- Jeffrey P. Naimon to discuss "Truth in lending” at the American Bar Association National Institute on Consumer Financial Services Basics
- Daniel R. Alonso to discuss anti-money-laundering at FELABAN Spanish-language webinar “Perspective for banks: LAFT, FINCEN, OFAC, Cryptocurrency”
- Daniel R. Alonso to discuss "What’s new in BSA/AML compliance?" at the Institute of International Bankers Regulatory Compliance Seminar
- Marshall T. Bell and John R. Coleman to speak at 2021 AFSA Annual Meeting
- Jon David D. Langlois to discuss "Regulatory update: What you need to know under the new boss; It won’t be the same as the old boss" at the IMN Residential Mortgage Service Rights Forum (East)
- Benjamin B. Klubes to discuss “Creating a Fantastic Workplace Culture”
- John R. Coleman and Amanda R. Lawrence to discuss “Consumer financial services government enforcement actions – The CFPB and beyond” at the Government Investigations & Civil Litigation Institute Annual Meeting
- Jonice Gray Tucker to discuss "Consumer financial services" at the Practising Law Institute Banking Law Institute
- Jonice Gray Tucker to discuss “Regulators always ring twice: Responding to a government request” at ALM Legalweek