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FFIEC finalizes November 2017 Call Report revisions
On March 30, the Federal Reserve Board, FDIC, and OCC—as members of the Federal Financial Institutions Examination Council (FFIEC)—announced finalized plans to reduce data reporting requirements and other regulatory requirements associated with the Consolidated Reports of Condition and Income (Call Reports) for financial institutions. According to the FFIEC, the finalized changes modify Call Reports applicable to banks with (i) domestic offices only and less than $1 billion in total assets (FFIEC 051); (ii) domestic offices only (FFIEC 041); and (iii) domestic and foreign offices (FFIEC 031). The changes include removing or consolidating certain data items and adding a new or raising certain existing reporting thresholds in the three versions of the Call Report. The changes were originally proposed in November 2017 (previously covered by InfoBytes here) and are effective June 30.
In January, the FFIEC also finalized other burden-reducing Call Report revisions based on a June 2017 proposal, as previously covered by InfoBytes.
Federal Reserve orders Chinese bank to correct BSA/AML controls
On March 12, the Federal Reserve Board (Fed) entered into a consent order with a Chinese bank (bank) and its New York branch (branch) in connection with alleged Bank Secrecy Act and anti-money laundering (BSA/AML) violations. According to the Fed’s order, a recent examination identified “significant deficiencies” in the branch’s BSA/AML compliance and risk management controls. The consent order requires, among other things, the bank and branch submit within 60 days: (i) a written governance plan to achieve compliance with BSA/AML requirements; (ii) a system to identify and assess risks associated with all products and customers, including “politically exposed persons”; (iii) an enhanced customer due diligence program plan; and (iv) a compliance program to ensure accurate suspicious activity monitoring and reporting. The bank and branch are further required to engage an independent third party acceptable to the Fed to review their dollar-clearing transaction activity in the second half of 2016 “to determine whether suspicious activity involving high-risk customers or transactions” was properly flagged. The order imposes no financial penalty.
Fed issues proposal to amend internal appeals process
On February 27, the Federal Reserve Board (Board) published proposed amendments to its guidelines on the internal appeals process for institutions that receive an adverse material supervisory determination. According to the proposal, the goal of the amendments is to improve and expedite the appeals process, which was established in 1995 and applies to any material supervisory determination, including matters related to an examination or inspection, which does not have an alternative, independent appeals process. The current guidelines allow for an institution to file a written appeal, which will be reviewed by a panel selected by the Federal Reserve Bank (Bank). The panel is made up of persons who are not employed by the Bank and have no affiliation with the material supervisory determination in question. Institutions also have further appeal rights to the Bank’s president and then a member of the Board. Proposed changes to the process include:
- reducing the number of appeal levels to two and providing a separate independent review at both appeal levels;
- establishing an accelerated process for appeals that relate to institutions becoming “critically undercapitalized” under the Prompt Corrective Action (PCA) framework as a result of the material supervisory determination, in order to ensure the review occurs within the required PCA timeframe; and
- instituting specific standards of review at both appeals stages. The first panel of review would be required to review the documentation “as if no determination had previously been made.” The final panel, made up primarily of Board staff, would review whether the initial appeals determination is “reasonable and supported by a preponderance of the evidence in the record,” and the decision of the final review panel would be made public.
The proposed amendments also contain changes to the Board’s Ombudsman policy, which, among other things would allow the Ombudsman—if requested by the institution or Federal Reserve personnel—to attend hearings or deliberations relating to the appeal as an observer. The proposal also would formalize many of the Ombudsman’s current activities, including receiving all complaints related to the Board’s supervisory process and facilitating informal resolution of institution’s concerns.
OCC makes technical changes to stress testing rule; regulators submit unified stress test report for OMB approval
On February 23, the OCC finalized technical changes to its annual stress testing rule. Specifically, the final rule (i) changes the range of possible “as-of” dates used in the global market shock component to conform to changes already made by the Federal Reserve Board (Fed) to its annual stress testing regulations; (ii) extends the transition process for covered institutions with $50 billion or more in assets (“a national bank or federal savings association that becomes an over $50 billion covered institution in the fourth quarter of a calendar year will not be subject to the stress testing requirements applicable to over $50 billion covered institutions until the third year after it crosses the asset threshold”); and (iii) makes certain technical clarifications to the requirements of the OCC’s stress testing rule. The final rule takes effect March 26.
The same day, the Fed, the OCC, and the FDIC submitted a notice to the Office of Management and Budget (OMB) requesting approval of a new stress test report form (FFIEC 016) to be implemented for the stress test report due July 31. If approved, FFIEC 016 would replace the agencies’ three separate, yet identical, forms currently used to collect information from financial institutions and holding companies with total assets of more than $10 billion but less than $50 billion. Comments on the proposed change must be received on or before March 26.
FDIC releases 2017 annual report, among key issues are living wills, cybersecurity, and simplifying regulations
On February 15, the FDIC released its 2017 Annual Report, which includes, among other things, the audited financial statements of the Deposit Insurance Fund and the Federal Savings and Loan Insurance Corporation (FSLIC) Resolution Fund. The report also provides an overview of key FDIC initiatives, performance results, and other aspects of FDIC operations, supervision developments, and regulatory enforcement, including the following:
- Living Wills. The report discusses the FDIC’s continued evaluation of resolution plans for Systemically Important Financial Institutions (SIFIs) and notes there remain “inherent challenges and uncertainties” associated with the plans, specifically within four areas: “intra-group liquidity; internal loss-absorbing capacity; derivatives; and payment, clearing, and settlement activities.” Further, the FDIC and Federal Reserve (who share joint responsibility for reviewing and assessing resolution plans) reviewed plans submitted by the eight largest U.S. SIFIs and noted that four of the firms’ plans had shortcomings—although no deficiencies were identified—and stipulated that the plans must be resubmitted by July 1, 2019. (See previous InfoBytes coverage here on recent comments by FDIC Chairman Martin concerning living will challenges.)
- Cybersecurity. Among other initiatives, the report discusses a collaboration between the FDIC, the Federal Reserve, and the OCC to update the interagency Cybersecurity Assessment Tool, which “helps financial institutions determine their cyber risk profile, inherent risks, and level of cybersecurity preparedness.” The report provides feedback from institutions currently using the tool.
- Simplifying Regulation. In accordance with the requirements of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA), the report discusses the FDIC’s, Federal Reserve Board’s, and OCC’s regulatory review process done in conjunction with the National Credit Union Administration and the members of the Federal Financial Institutions Examination Council (FFIEC). As previously covered in InfoBytes here and here, a report was issued in March outlining initiatives designed to reduce regulatory burdens, particularly on community banks and savings associations, and last September a proposed rule to simplify capital rule compliance requirements and reduce the regulatory burden was issued.
FDIC Chairman discusses challenges associated with living wills
On February 16, FDIC Chairman, Martin J. Gruenberg, spoke at an event hosted by The Wharton School in Philadelphia about the challenges associated with managing the orderly failure of a systemically important financial institution. In prepared remarks, Gruenberg discussed his views on how the FDIC’s Title II Orderly Liquidation Authority granted under Dodd-Frank—which allows the regulator “to manage the orderly failure of any financial institution whose failure in bankruptcy could pose a risk to the financial system”—is complementary to the Title I living will process. Title I requires firms to “make significant changes in their organizational structure and operations to facilitate orderly failure in bankruptcy.” Gruenberg outlined the evolution of the living will process from its inception under Dodd-Frank in 2010, to the efforts undertaken by the eight largest, most complex banks when assembling their mandated resolution plans, which are reviewed by the FDIC and the Federal Reserve (the agencies). While the banks have demonstrated “substantial” progress on their resolution plans, Gruenberg commented “there is still a great deal of work to do.” Specifically, Gruenberg noted that in 2016, the agencies determined that (i) five of the eight submitted plans “would not facilitate an orderly resolution of the firm under the Bankruptcy Code,” and (ii) all eight plans contained “shortcomings” that raised questions about the plans’ feasibility. All systematically important financial institutions were directed to address their shortcomings in their next submissions. During his remarks, Gruenberg cited examples of progress made in 2017, and highlighted the “structural and operational improvements” firms have made to improve resolvability. However, he closed his remarks by noting these resolutions have not yet been tested and emphasized the need to continue to address challenges as they arise.
Agencies assess $613 million in total penalties against national bank and its parent for BSA/AML deficiencies
On February 15, a national bank and its parent corporation were assessed $613 million in total penalties by the OCC, DOJ, Federal Reserve, and Financial Crimes Enforcement Network (FinCEN) as part of a deferred prosecution agreement over Bank Secrecy Act (BSA) and anti-money laundering (AML) compliance program deficiencies. According to the announcement by the DOJ, the agency’s settlements cover a range of alleged AML deficiencies back to 2009, including an alleged effort not to disclose known Suspicious Activity Report (SAR) deficiencies to the OCC. Additionally, the DOJ cited the bank for failing to timely file SARs related to the banking activity of a customer who used the bank to launder proceeds from a fraudulent payday lending scheme, when the bank was allegedly on notice of the activity (previously covered by InfoBytes here).
The $613 million in penalties include: a $453 million forfeiture as part of the deferred prosecution agreement with the DOJ; a $75 civil money penalty from the OCC; a $15 million civil money penalty from the Federal Reserve; and a $70 million civil money penalty from FinCEN.
Federal Reserve blocks national bank’s growth, cites internal governance and risk management oversight failures
On February 2, the Federal Reserve Board (Fed) cited compliance breakdowns and widespread consumer abuses as the primary factors behind its decision to issue an order to cease and desist against a national bank. In addition to blocking the bank from growing beyond $1.95 trillion in assets until the Fed approves internal governance and risk management reforms, the order also requires the bank to take actions in the areas of board effectiveness, risk management program improvement, third party reviews of plans and improvements, and reports on progress. The bank must, among other things, (i) create “separate and independent reporting lines” to the chief risk officer and the board, and (ii) enhance risk management oversight and functions, which includes creating “an effective risk identification and escalation framework.” The bank concurrently agreed to replace four current board members in 2018, with three replaced by April. Notably, the order does not require the bank to cease current activities such as accepting customer deposits or making consumer loans.
The Fed also sent letters to the bank’s former lead independent director and former chair of the board of directors (see letters here and here) to address the “many pervasive and serious compliance and conduct failures” that occurred during their tenures. Citing ineffective oversight following awareness of alleged consumer abuses, the Fed stated that the former directors failed to initiate any serious inquiry or request that the board do so. Further, the Fed asserted that the former chair of the board continued to support the sales goals that were a major cause of the identified sales practice problems and failed to initiate a serious investigation or inquiry. A third letter sent to the current board of directors outlines steps the board must take to improve senior management reporting, maintain an effective risk management structure, and ensure compensation and other incentive programs are “consistent with sound risk management objectives and promote . . . compliance with laws and regulations.” (See here and here for previous InfoBytes coverage on the alleged improper sales practices.)
In response, the bank issued a press release stating it will commit to the Fed’s requirements and will provide a compliance plan for oversight, compliance, and operational risk management to the Fed within 60 days. The plan will also outline measures already completed by the bank, and if approved by the Fed, the bank will engage independent third parties to review its adoption and implementation of the plan.
Federal Reserve, FDIC, OCC release stress testing scenarios
On February 1, the Federal Reserve Board (Fed) published stress testing scenarios to be used when conducting the 2018 Comprehensive Capital Analysis and Review (CCAR) evaluations and stress test exercises for large bank holding companies and large U.S. operations of foreign firms. Instructions for participating banks also were released. According to the Fed, in an effort designed to “support the transition to stress testing,” foreign banks will only be required to participate in a “simplified global market shock” portion of the CCAR evaluation. As previously covered in InfoBytes, last December the Fed issued a request for comments on three proposals designed to increase stress testing transparency and resiliency of large, complex banks. This included a proposal to publicly release, for the first time, information concerning the models and methodologies used during supervisory stress tests, including those applied in the CCAR. According to the Fed’s press release, the qualitative and quantitative evaluations will be used to evaluate a bank’s ability to survive in times of economic stress and are broken into three scenarios with varying degrees of stress: baseline, adverse and severely adverse. The Fed reminded participating banks that capital plan and stress testing submissions are due by April 5.
The same day, the OCC issued its own stress testing scenarios for required OCC-supervised institutions with more than $10 billion in assets, and on February 2, the OCC released a notice and request for comments (notice) on revised templates to be used for stress test exercises performed by covered institutions with total consolidated assets of $50 billion or more. According to the notice, revisions would reduce the number of data items in the Supplemental Schedule by approximately half, and include (i) the elimination of two reporting schedules—the Regulatory Capital Transitions Schedule and the Retail Repurchase Exposures Schedule; (ii) the addition of new criteria for institutions subject to the global market shock evaluation; and (iii) clarification on how “Credit Loss Portion” and “Non-Credit Loss Portion” are reported in the summary schedule worksheets. Furthermore, under the revisions, savings associations would be eligible to use the simplified reporting requirements already available to other large, non-complex holding companies. The notice was published in the Federal Register on February 2 and comments are due by March 5.
Additionally, on February 6, the FDIC released economic scenarios developed in coordination with the Fed and the OCC for certain supervised financial institutions. According to the FDIC, the scenarios “include key variables that reflect economic activity, including unemployment, exchange rates, prices, income, interest rates, and other salient aspects of the economy and financial markets.”
Review procedures need enhancing according to GAO’s Regulatory Flexibility Act compliance report
On January 30, the Government Accountability Office (GAO) released its annual report on federal financial regulators’ compliance with the Regulatory Flexibility Act (RFA). Specifically, the report assessed whether certain regulators adhered to the RFA when drafting and implementing regulations that may affect small entities. Such regulators include the Federal Reserve, Commodity Futures Trading Commission, CFPB, FDIC, OCC, and SEC (collectively, the "agencies"). Under the RFA, the agencies must either (i) certify that a rule would not have a significant economic impact on a substantial number of small entities, or (ii) perform a regulatory flexibility analysis to assess the rule’s impact on small entities and “consider alternatives that may minimize any significant economic impact of the rule.” The report disclosed issues related to certifications. Examples included (i) providing incomplete disclosures of data sources or methodologies of economic analysis and impact; (ii) failing to provide definitions for criteria used to determine a “substantial number” or a “significant economic impact”; and (iii) relying on alternative and potentially outdated definitions of small entities. Additionally, GAO noted that many regulators were unable to provide supporting documentation for their analyses. GAO presented 10 recommendations for enhancing compliance procedures, and stressed that regulators should “develop and implement specific policies and procedures for consistently complying with RFA requirements and related guidance for conducting RFA analyses.” Specific recommendations for each agency are located here.