Top Story Operations Related

The NCUA has announced that its Board of Directors yesterday approved a final rule incorporating its Second Chance Interpretive Ruling and Policy Statement and the Fair Hiring in Banking Act into its regulations, and a final rule that would simplify share insurance regulations by establishing a “trust accounts” category, aligning the Share Insurance Fund coverage for federally insured credit union members’ trust accounts with the coverage provided by the FDIC’s coverage of trust accounts at federally insured banks.

FinCEN has announced its release of a Beneficial Ownership Reporting Outreach and Education Toolkit that can be used in efforts to educate small business owners about new beneficial ownership reporting requirements mandated by the bipartisan Corporate Transparency Act.

The toolkit contains templates and sample content that has been structured to allow private, public, and non-profit organizations to share and amplify this important information. The toolkit includes general background on the reporting requirements, as well as templates for newsletters, websites, and emails; sample social media posts and images; and information on how to contact FinCEN.

The OCC has announced enforcement actions recently taken against OCC-supervised institutions—

• A formal agreement with First Federal Savings Bank of Kentucky, Frankfort, Kentucky, for unsafe or unsound practices, including those related to strategic planning and budgeting, succession planning, liquidity risk management, and interest rate risk management
• A previously announced formal agreement with Wells Fargo Bank, N.A., Sioux Falls, South Dakota, for deficiencies related to the bank’s financial crimes risk management practices and anti-money laundering internal controls in several areas
• An order of prohibition against Natasha A. Aikens, former lead associate at a Brooklyn, New York, branch of JPMorgan Chase Bank, N.A., Columbus, Ohio, for engaging in a scheme to steal bank funds and falsely reporting the receipt of counterfeit bills in the bank’s general ledger, resulting in losses to the bank of at least $201,000

The Treasury Department has reported that OFAC has designated a network of five entities and one individual—based in Russia and in the Russia-occupied Georgian region of South Ossetia—that have enabled and supported ongoing efforts to establish illicit payment mechanisms between Russia and the Democratic People’s Republic of Korea (DPRK). Yesterday’s action holds accountable parties that have assisted DPRK and Russian sanctions evasion and demonstrates Treasury’s commitment to exposing and disrupting networks that facilitate the funding of the DPRK’s weapons of mass destruction (WMD) and ballistic missile programs and support Russia’s war against Ukraine.

For a link to the names and identification information of the designated parties, see yesterday's BankersOnline OFAC Update.

Yesterday, the Treasury Department reported that OFAC has designated 12 individuals in connection with the Iranian regime’s ongoing, violent repression of the Iranian people, both within Iran’s borders and abroad. These designations target members of the Islamic Revolutionary Guard Corps (IRGC), officials of Iran’s Prisons Organization, and those responsible for lethal operations overseas.

For the names and identification information of the designated parties, see yesterday's BankersOnline OFAC Update.

The Securities and Exchange Commission yesterday announced charges against a dozen municipal advisors for failures by the firms and their personnel to maintain and preserve certain electronic communications. The firms agreed to pay combined civil penalties of more than $1.3 million to settle the SEC’s charges.

According to the SEC, the 12 firms admitted the facts set forth in their respective SEC orders, acknowledged that their conduct violated recordkeeping provisions of the federal securities laws, have begun implementing improvements to their compliance policies and procedures to address these violations, and agreed to pay the following civil penalties:

• Acacia Financial Group Inc. — $52,000
• Caine Mitter and Associates Inc. — $94,000
• cfX Inc. — $42,000
• CSG Advisors Inc. — $40,000
• Kaufman Hall & Associates LLC, together with Ponder & Company — $324,000
• Montague DeRose & Associates LLC — $40,000
• PFM Financial Advisors LLC — $250,000
• Phoenix Advisors LLC — $40,000
• Public Resources Advisory Group Inc. — $184,000
• Specialized Public Finance Inc. — $250,000
• Zions Public Finance Inc. — $47,000

Yesterday, the FDIC's Board of Directors approved a final Statement of Policy on Bank Merger Transactions (Final SOP). The Final SOP addresses the scope of transactions subject to FDIC approval, the FDIC’s process for evaluating merger applications, and the principles that guide the FDIC’s consideration of the applicable statutory factors as set forth in the Bank Merger Act.

With respect to the statutory factors, the Final SOP:

• Confirms that the FDIC’s evaluation of a merger’s competitive effects may take into account concentrations beyond deposits, including small business or residential loan originations;
• Clarifies that the proposed merger should result in less financial risk than the risk posed by the institutions on a standalone basis;
• Elaborates on the FDIC’s expectation that a merger will enable the resulting institution to better meet the convenience and needs of the community to be served;
• Applies additional scrutiny to the evaluation of financial stability for transactions resulting in an institution with $100 billion or more in total assets; and
• Communicates the FDIC’s expectation to hold public hearings for mergers resulting in an institution with over $50 billion in total assets.

The Final SOP supersedes the existing Statement of Policy, which was last updated in 2008. The updates approved by the FDIC Board yesterday account for the significant changes that have occurred in the banking industry and financial system over the last several decades. The Final SOP refines, and in some cases, broadens the description of the analytical considerations for each statutory factor.

The FDIC Board of Directors approved yesterday a notice of proposed rulemaking that would strengthen recordkeeping for bank deposits received from third party, non-bank companies accepting those deposits on behalf of consumers and businesses. The proposal seeks to address risks related to these third-party arrangements, protect depositors, and promote public confidence in insured deposits.

Non-banks may deposit funds together into a single custodial account at a bank. These custodial accounts may hold funds of many thousands of consumers and businesses, and the bank may not readily know or be able to determine the individual owners of funds in the custodial account. Under the proposed rule, FDIC-insured banks holding certain custodial accounts, as defined in the proposal, would be required to take certain steps to ensure accurate account records are maintained in order to determine the individual owner of the funds, including a requirement to reconcile the account for each individual owner on a daily basis. These requirements, as well as others, apply if the bank uses a third party to maintain records.

The proposal’s provisions also provide for oversight by the banks’ primary federal supervisor to review for compliance with this rule and enforcement authority to compel compliance if the bank fails to meet these requirements.

The FDIC invites public comments on all aspects of the proposal. Public comments on the proposal are due 60 days after publication in the Federal Register.

The CFPB has announced it has published Consumer Financial Protection Circular 2024-05 on "Improper Overdraft Opt-In Practices" to address whether a financial institution can violate the law if there is no proof that it has obtained consumers' affirmative consent before levying overdraft fees for ATM and one-time debit card transactions.

According to CFPB Director Rohit Chopra, “The CFPB has found instances where banks have no evidence that they obtained consent for overdraft. No Americans should be hit with bank account fees that they never agreed to.”

The CFPB reports it has observed that in many circumstances, financial institutions have created serious obstacles to consumers taking steps to anticipate and avoid overdraft fees, and cites several enforcement actions the Bureau has taken against banks that failed to properly adhere to the requirements of section 1005.17 of Regulation E.

The Bureau's press release suggests that consumer protection law enforcers "should assume consumers have not opted into overdraft [service for ATM and one-time debit card transactions] unless the banks can prove otherwise," and that "some banks have been unable to provide such evidence." The Circular lists three examples of forms of records that banks might use to document consumer consent, depending on the channel through which the consumer opts in. The examples are not all-inclusive or exhaustive:

• For consumers who opt into covered overdraft services in person or by postal mail, a copy of a form signed or initialed by the consumer indicating the consumer’s affirmative consent to opting into covered overdraft services would constitute evidence of consumer consent to enrollment.
• For consumers who opt into covered overdraft services over the phone, a recording of the phone call in which the consumer elected to opt into covered overdraft services would constitute evidence of consumer consent to enrollment.
• For consumers who opt into covered overdraft services online or through a mobile app, a securely stored and unalterable “electronic signature” as defined in the E-Sign Act (15 U.S.C. 7006(5)) conclusively demonstrating the specific consumer’s action to affirmatively opt in and the date that the consumer opted in would constitute evidence of consumer consent to enrollment.

The OCC has reported it has approved a final rule updating its regulations for business combinations involving national banks and federal savings associations and a policy statement clarifying its review of applications under the Bank Merger Act (BMA).

The final rulemaking is part of the OCC’s effort to enhance transparency around its process of reviewing transactions under the BMA. It also provides additional guidance to stakeholders around the OCC’s review of applications. The policy statement specifically discusses:

• general principles for the OCC’s review of applications under the BMA, including:
  • indicators for applications that are more likely to withstand scrutiny and be approved expeditiously; and
  • indicators for applications that raise supervisory or regulatory concerns which most likely need to be resolved prior to OCC approval;
• the OCC’s consideration of the financial stability; managerial and financial resources and future prospects; and convenience and needs statutory factors under the BMA; and
• the OCC’s decision process for extending the public comment period or holding a public meeting.