The five federal banking agencies (Federal Reserve, Bureau of Consumer Financial Protection, Federal Deposit Insurance Corporation, National Credit Union Administration, and Office of the Comptroller of the Currency – collectively Agencies) have issued a joint statement on the role of supervisory guidance.

The statement says that supervisory guidance does not have the force and effect of law, and that the Agencies do not take enforcement actions based on supervisory guidance. However, the Agencies state that supervisory guidance outlines the Agencies’ “supervisory expectations or priorities and articulates the [A]gencies’ general views regarding appropriate practices for a given area.” For example, supervisory guidance often contains examples of practices that the Agencies “generally consider consistent with safety-and-soundness standards or other applicable laws and regulations.”

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It’s here. The Federal Reserve Board and the Federal Deposit Insurance Corporation have released a proposed rule (Proposed Rule) that would make important modifications to Section 13 of the Bank Holding Company Act, commonly known as “the Volcker Rule.” The Proposed Rule is intended to address the “complexity” of the Volcker Rule, which has created “compliance uncertainty” and, in the words of Fed Chairman Jerome Powell, to “allow firms to conduct appropriate activities without undue burden and without sacrificing safety and soundness.”

The remaining three agencies responsible for implementation of the Volcker Rule (Office of the Comptroller of Currency, the US Securities and Exchange Commission, and the Commodity Futures Trading Commission) are expected to release their proposals shortly. Other than agency-specific variations, the proposal released by each of the five agencies is expected to be the same. The comment period for the Proposed Rule will be 60 days from the date of publication of the proposal in the Federal Register.

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We usually don’t blog about financial regulatory nonevents, but sometimes it is useful simply to point out when something is just that. Our “nonevent event” example of the day is the April 30 dismissal (read the accompanying order here) by the US District Court for the District of Columbia of the Conference of State Bank Supervisors (CSBS) lawsuit against the Office of the Comptroller of the Currency (OCC), where the CSBS challenged the OCC’s authority to issue national bank nondepository fintech charters. The court dismissed the lawsuit in part for lack of “ripeness,” which is administrative lawspeak for “there’s nothing to challenge here.” Put simply, the OCC has not chartered any fintech banks and has not even issued final guidance on the chartering process, and the court therefore found itself without anything to review or decide. Administrative law aficionados therefore should not be at all surprised by that aspect of the court’s decision and reasoning. As the court trenchantly stated, “Indeed, there may ultimately be no case to decide at all if the OCC does not charter a Fintech.” A similar lawsuit against the OCC that was filed by the New York State Department of Financial Services was dismissed last year on similar grounds, and we surmised at that time that the CSBS suit might suffer the same procedural fate.

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US financial reform at the congressional and regulatory agency levels continues to move along—albeit more in fits and starts than in a blaze of big happenings. Below is a recap on where matters currently stand.

Congress

The US Senate financial regulatory reform bill, “The Economic Growth, Regulatory Relief and Consumer Protection Act” (S. 2155), about which we have previously written, remains on the Senate legislative calendar and now has 25 co-sponsors (12 Democrats, 12 Republicans, and 1 Independent who caucuses with the Democrats). No major actions on the bill have been taken. Given the bipartisan nature of the bill, it stands a reasonable chance of passing in the Senate (a vote will reportedly occur sometime in March) but will face strong opposition from Senator Elizabeth Warren and other progressive Democrats. There has been no indication from the House of Representatives thus far as to whether it will take up the Senate bill (if passed) or push for broader regulatory reform to align with its own financial regulatory reform bill.

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On November 16, the US Senate confirmed by a 54–43 vote the appointment of President Donald Trump’s nominee Joseph Otting as the new Comptroller of the Currency. Mr. Otting will assume his new duties upon being sworn in, which is expected to occur at or near the end of November. Reportedly, current acting Comptroller Keith Noreika will return to the private sector.

Mr. Otting, who at one time in his career was chief executive officer of OneWest Bank Group, which acquired most of the business of the failed IndyMac Bank and which was headed by Secretary of the Treasury Steven Mnuchin, is expected to support the administration’s efforts to move bank regulation and supervision in a more deregulatory direction. During his confirmation hearing, Mr. Otting drew strong criticism from Senate Democrats, mostly for his industry ties and the mortgage foreclosure activities of OneWest in the aftermath of the financial crisis. Mr. Otting’s prior public statements suggest that, as comptroller, he will focus on matters such as regulatory relief for community banks and regulatory and supervisory actions that would promote bank lending. He also has expressed support, however, for the overall bank regulatory framework, suggesting that he may adopt a more measured approach to changes in bank regulation and supervision.

As the first anniversary of the Trump administration fast approaches, we decided to take a quick look at where matters stand on financial services reform.

This is what we see at the present time:

Congressional Action

On the congressional front, we have not been optimistic about the general prospects for changes to the Dodd-Frank Act or other financial reform legislation. But Senate Banking Committee Chair Mike Crapo and several Banking Committee Democrats on November 13 announced a bipartisan agreement in principle on the outlines of targeted “economic growth” legislation. The new proposal would, among other things, raise the current Dodd-Frank Act $50 billion asset threshold for a bank to be treated as “systemically important”—and therefore subject to more stringent Dodd-Frank systemic regulation—to $250 billion. The proposal also contains other “community bank relief” measures, including an exemption from the Volcker Rule for banking organizations with less than $10 billion in assets and limited trading assets. As is generally the case these days, prospects for further action on this proposal are uncertain, with progressive members of Congress already beginning to speak out against it. The fact that the proposal has (some) bipartisan support, however, may give this initiative the “legs” that prior congressional initiatives such as the Financial CHOICE Act never really had.

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October in Washington, DC is typically busy, marking the start of a new fiscal year for the federal government, a new term of the Supreme Court, and, this year, a lot of activity by financial regulators and Congress.

Just this week:

• There were two hearings in the Senate Banking Committee on consumer protection.
• The Senate confirmed Randal Quarles as the newest member of the Board of Governors of the Federal Reserve System (the Federal Reserve Board) by a 65–32 vote.
• The CFPB released its long-awaited and much discussed, including by us at All Things FinReg, final rules regulating payday loans, vehicle title loans, and certain other high-cost loans (the Payday Lending Final Rule).
• The OCC rescinded its 2013 Guidance on Supervisory Concerns and Expectations Regarding Deposit Advance Products in response to the Payday Lending Final Rule.

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The Office of the Comptroller of the Currency (OCC), the Federal Reserve Board (Board), and the Federal Deposit Insurance Corporation (FDIC) (collectively, the Agencies) have jointly announced a proposed rulemaking that would extend the existing transitional periods for certain regulatory capital deductions and risk weights (Proposed Rule). The proposed extension would apply to banking organizations that are not subject to the advanced approaches capital rules, which generally means those banking organizations with less than $250 billion in total consolidated assets and less than $10 billion in total foreign exposure. Significantly, the Agencies state that the Proposed Rule is being issued in preparation for a forthcoming proposal that would “simplify the regulatory capital treatment of these items.”

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On June 22, senior officials from the three primary federal bank regulatory agencies—the Office of the Comptroller of the Currency (OCC), the Federal Reserve Board (Board), and the Federal Deposit Insurance Corporation (FDIC)—testified before the Senate Committee on Banking, Housing and Urban Affairs (Committee) on, among other things, financial services reform matters. In the wake of the Financial CHOICE legislation (CHOICE Act), which recently passed the House of Representatives, and the more recent US Department of the Treasury report (Treasury Report) recommending changes to the current financial regulatory framework, financial reform’s legislative center of gravity has now moved to the Senate, which is currently trying to develop its own version of such legislation.

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Notwithstanding objections from both parties of the US Congress and state banking regulators, the Office of the Comptroller of the Currency (OCC) is moving forward with its proposal to accept applications from financial technology companies for a special purpose national bank charter (FinTech Charter) and has issued draft guidelines (FinTech Charter Guide) for its evaluation of FinTech Charter applications.

We have previously discussed the OCC’s FinTech Charter proposal and its somewhat rocky path (read our previous posts on the topic here and here). The OCC is inviting comments on the draft through April 14, 2017, although we do not expect the final version of the guide to deviate significantly from the current draft.

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