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Nutter Bank Report: July 2019

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07.29.2019 | Legal Update

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  1. Federal Banking Agencies Issue Final Rule to Simplify Regulatory Capital Calculations
  2. FASB Proposes to Delay CECL Standard Effective Date for Certain Smaller Institutions
  3. Massachusetts Legislature Considering Updates to Automobile Lien Holder Notices
  4. Federal Lawmakers Propose Safe Harbor for Banks that Service Cannabis Businesses
  5. Other Developments: Change in Control, Volcker Rule, and BSA/AML Exams

1. Federal Banking Agencies Issue Final Rule to Simplify Regulatory Capital Calculations

The federal banking agencies have issued a final rule that simplifies several requirements in the agencies' regulatory capital rules for banking organizations that do not use the “advanced approaches” capital framework (generally, institutions with less than $250 billion in total consolidated assets and less than $10 billion in total foreign exposure). The final rule released on July 9 simplifies the treatment of assets subject to common equity tier 1 capital threshold deductions, and limitations on capital issued by a consolidated subsidiary of a banking organization and held by third parties (also known as a minority interest). The final rule increases the permitted amount of a non-advanced approaches banking organization’s investment in mortgage servicing assets (“MSAs”), deferred tax assets (“DTAs”) arising from temporary differences that an institution could not realize through net operating loss carrybacks (temporary difference DTAs), and investments in the capital of unconsolidated financial institutions. Under the current capital rules, a banking organization must deduct from common equity tier 1 capital amounts of MSAs, temporary difference DTAs, and significant investments in the capital of unconsolidated financial institutions in the form of common stock that individually exceed 10% of the banking organization’s common equity tier 1 capital. In addition, the current rules require a banking organization to deduct from its common equity tier 1 capital the aggregate amount of these exposure categories not deducted under the 10% threshold deduction but that nonetheless exceed 15% of the banking organization's common equity tier 1 capital minus certain deductions from and adjustments to common equity tier 1 capital. The final rule effectively raises the deduction threshold for each of these exposure categories in regulatory capital to 25% and eliminates the second-step 15% deduction threshold. The final rule becomes effective as of April 1, 2020 for the amendments simplifying the capital rules, and as of October 1, 2019 for revisions to certain pre-approval requirements for the redemption of common stock and other technical amendments. Click here for a copy of the final rule.

Nutter Notes: The final rule simplifies the calculation of minority interest that is includable in regulatory capital by allowing non-advanced approaches banking organizations to include common equity tier 1 minority interest comprising up to 10% of the parent banking organization’s common equity tier 1 capital, tier 1 minority interest comprising up to 10% of the parent banking organization’s tier 1 capital, and total capital minority interest comprising up to 10% of the parent banking organization’s total capital. The final rule resulted from the agencies’ March 2017 report to Congress under the Economic Growth and Regulatory Paperwork Reduction Act of 1996, in which the agencies committed to meaningfully reduce regulatory burden, particularly on community banking organizations. The agencies indicated in the March 2017 report that they intended to simplify for non-advanced approaches banking organizations the current regulatory capital treatment for concentrations of MSAs, temporary difference DTAs, minority interests, and high volatility commercial real estate (“HVCRE”) exposures. The Economic Growth, Regulatory Relief, and Consumer Protection Act (“EGRRCPA”), which became law in 2018, amended the capital treatment for HVCRE exposures. Therefore, the agencies have proposed changes to the regulatory capital treatment of HVCRE exposures to implement the requirements of EGRRCPA through a separate rulemaking.

2. FASB Proposes to Delay CECL Standard Effective Date for Certain Smaller Institutions

The Financial Accounting Standards Board (“FASB”) has approved a proposal to delay the implementation date for the new current expected credit losses (“CECL”) methodology accounting standard until January 2023 for certain smaller public and private lenders, including banks and bank holding companies. The delay proposed on July 17 would apply to “smaller reporting companies,” as defined by the U.S. Securities and Exchange Commission (“SEC”), non-SEC reporting public companies, private companies, not-for-profit organizations, and employee benefit plans. Under the proposal, the CECL standard would become effective for lenders in these categories for fiscal years beginning after December 15, 2022, including interim periods within those fiscal years. In December 2018, the federal banking agencies approved a final rule that modifies their regulatory capital rules to provide banking organizations the option to phase in over a three-year period any day-one regulatory capital effects of the new CECL standard. The agencies may revise the phase-in period if FASB adopts the proposed delay for the CECL standard implementation date. Click here for a summary of FASB’s proposal.

Nutter Notes: FASB issued Accounting Standards Update No. 2016-13, Financial Instruments—Credit Losses, Topic 326, Measurement of Credit Losses on Financial Instruments (“ASU 2016-13”), which introduced CECL to U.S. GAAP, in 2016. The effective date of ASU 2016-13, and therefore the mandatory use of the CECL methodology, varies for different banking organizations. For banking organizations that are SEC filers, CECL will be mandatory for the first fiscal year beginning after December 15, 2019, including interim periods within that fiscal year. FASB’s proposal would not change the implementation date for SEC filers. Under the federal banking agencies’ current rules, a bank that experiences a reduction in retained earnings due to CECL adoption as of the beginning of the fiscal year in which the bank must adopt CECL may elect to phase in the regulatory capital impact of adopting CECL over a three-year transition period. The bank will be required to begin applying the CECL transition provision as of the applicable CECL effective date. The rules require that the bank indicate its election to use the three-year phase-in in its Call Report for the quarter in which the bank first reports its credit loss allowances as measured under CECL.

3. Massachusetts Legislature Considering Updates to Automobile Lien Holder Notices

The Joint Committee on Consumer Protection and Professional Licensure of the Massachusetts General Court held a hearing on July 3 on a bill that would standardize and update the notice process to auto lenders, including banks, as lien holders and others related to motor vehicles that are either voluntarily or involuntarily abandoned. If it became law, the bill, House 302, An Act Relative to Notifying Automobile Lien Holders of Certain Towing and Storage Costs, would require the owner or operator of a motor vehicle storage facility to which a vehicle is involuntarily towed and stored to notify any lienholder of the vehicle of the applicable recovery, transportation and storage rates. The bill would also require similar notice to the registered owner of the vehicle. The bill would require that the notice ask the registered owner whether the vehicle should continue to be held subject to the disclosed storage rates. However, even if the registered owner agrees to continue storage of the vehicle, the bill would require that the vehicle be released to the lienholder if the lienholder pays the current charges for recovery, transportation and storage. Click here for the text of the bill.

Nutter Notes: The bill would require the owner or operator of a motor vehicle storage facility to use the vehicle identification number or plate number to identify the registered owner and any lienholder through the registry of motor vehicles motor vehicle database system. The owner or operator of the storage facility would be required to send the required notices within five business days of storing a vehicle. If the registered owner fails to answer the notice within 14 days of receipt or fails to remove the vehicle after paying the recovery, transportation and storage charges within 14 days after such payment, the bill would allow the storage facility to continue to store the vehicle at the prevailing rates. In such a case, the bill would require the owner or operator of the storage facility to again notify any lienholder that the vehicle continues to be stored, and disclose the recovery, transportation and storage charges. Finally, the bill would allow the storage facility to sell the vehicle if the owner or lienholder of the vehicle has not claimed the vehicle after a period of time and final notice. Under the bill, such a sale would be conducted at either a public or private sale after publishing three newspaper notices of the sale. The bill provides that, after deducting from the proceeds of the sale all charges for recovery, transportation and storage, the costs of sending notices, and the costs of holding the sale, the owner of the storage facility must deliver to the registered owner and lienholder of the vehicle a statement of the amount received at the sale, all charges and costs, and the balance of the proceeds of the sale, if any, and pay such balance first to any lienholder, and then to the registered owner if the lienholder’s address is not known.

4. Federal Lawmakers Propose Safe Harbor for Banks that Service Marijuana Businesses

Congress is considering a bipartisan bill that would, if it became law, create protections for depository institutions that provide financial services to a “cannabis-related legitimate business” operating in compliance with applicable state laws, and its service providers. The bill defines cannabis-related legitimate business to include a manufacturer, producer, or other person or company that participates in the cultivation, production, manufacture, sale, transport, display, dispensing, distribution, or purchase of marijuana or marijuana products pursuant to state law. In a report issued on June 5, the House Committee on Financial Services recommended that Congress approve the bill, H.R. 1595, the Secure and Fair Enforcement (SAFE) Banking Act of 2019. Specifically, the bill would prevent any federal banking agency from prohibiting a depository institution (or its service providers) from, or penalizing a depository institution (or its service providers) for, providing a financial service to a marijuana business or a service provider of a marijuana business that operates in compliance with state law. The bill has been discharged by the House Committee on the Judiciary (advancing it without a report) and placed on the House Union Calendar, moving it closer to a floor vote in the House of Representatives. If approved by a floor vote in the House, the bill would then be considered by the Senate. Click here for a copy of the current text of the bill.

Nutter Notes:  The SAFE Banking Act of 2019 was introduced by Representative Ed Perlmutter of Colorado and is co-sponsored by over 200 representatives from both parties. The bill would not affect the status of cannabis or marijuana as an illegal substance under the Federal Controlled Substances Act. Therefore, even if the bill becomes law, the cultivation, distribution and possession of marijuana would remain criminal under federal law, and all proceeds of such activities would remain illicit funds under federal law. The bill would amend the Bank Secrecy Act to require FinCEN to issue guidance on suspicious activity reporting (“SAR”) related to a cannabis-related legitimate business or service provider. The bill would require that any such SAR must comply with the guidance, and that the guidance be consistent with the purpose and intent of the SAFE Banking Act of 2019 to “not significantly inhibit the provision of financial services to a cannabis-related legitimate business or service provider in” a state or other political subdivision of the U.S. in which marijuana-related business has been legalized.

5. Other Developments: Change in Control, Volcker Rule, and BSA/AML Exams

  • Legal Opinion Interprets Undefined Terms under State Change in Bank Control Law

The Massachusetts Division of Banks issued a legal opinion on June 5 that interprets certain requirements under the Massachusetts law governing changes in control of state-chartered stock banks, Chapter 167I, Section 14 of the General Laws of Massachusetts. In particular, the opinion defined the term “acting in concert” to acquire control of a stock bank to mean “[k]nowing participation in a joint activity or parallel action towards a common goal of acquiring control whether or not pursuant to an express agreement,” or “[a] combination or pooling of voting or other interests in the securities of an issuer for a common purpose pursuant to any contract, understanding, relationship, agreement, or other arrangement, whether written or otherwise.” Click here for a copy of the opinion.

Nutter Notes: The Division’s opinion adopts the definition of acting in concert that applies under the federal Change in Bank Control Act. The Massachusetts law requires that changes in control of a Massachusetts stock bank are subject to review and approval by the Massachusetts Commissioner of Banks.

  • Federal Agencies Issue Final Rule that Excludes Community Banks from Volcker Rule

The federal financial regulatory agencies have released a final rule on July 9 that excludes community banks from the Volcker Rule, consistent with the requirements of EGRRCPA. Under the final rule, banks with $10 billion or less in total consolidated assets and total trading assets and liabilities of 5% or less of total consolidated assets are not subject to the Volcker Rule. Click here for a copy of the final rule.

Nutter Notes: The Volcker Rule generally restricts banking entities from engaging in proprietary trading and from owning, sponsoring, or having certain relationships with hedge funds or private equity funds. The final rule excluding community banks from the Volcker Rule also permits a hedge fund or private equity fund, under certain circumstances, to share the same name or a variation of the same name with an investment adviser as long as the adviser is not an insured depository institution, a company that controls an insured depository institution, or a bank holding company. The final rule became effective on July 22, 2019. 

  • Federal Banking Agencies Issue New BSA/AML Examination Guidance

The federal banking agencies along with FinCEN issued new joint examination guidance on July 22 that outlines common practices to be used by regulators to assess a bank’s money laundering/terrorist financing risk profile, and to assist examiners in scoping and planning BSA/AML examinations. According to the agencies, the guidance, titled Joint Statement on Risk-Focused Bank Secrecy Act/Anti-Money Laundering Supervision, is intended to improve banks’ understanding of the risk-focused approach used for planning and performing BSA/AML examinations and does not establish any new regulatory requirements. Click here for a copy of the new guidance.

Nutter Notes: While the guidance is meant to restate existing regulatory requirements, it includes a statement on de-risking to remind banks that the agencies encourage banks “to manage customer relationships and mitigate risks based on customer relationships rather than declining to provide banking services to entire categories of customers.” In addition, the issuance of the guidance itself may be an implicit acknowledgement by the agencies of industry concerns that BSA/AML examinations have become less risk-based in practice.

Nutter Bank Report

Nutter Bank Report is a monthly electronic publication of the Banking and Financial Services Group of the law firm of Nutter McClennen & Fish LLP. Chambers and Partners, the international law firm rating service, after interviewing our clients and our peers in the profession, has ranked Nutter’s Banking and Financial Services practice among the top banking practices in the nation. Visit the U.S. rankings at ChambersandPartners.com. The Nutter Bank Report is edited by Matthew D. Hanaghan. Assistance in the preparation of this issue was provided by Heather F. Merton. The information in this publication is not legal advice. For further information, contact:

Thomas J. Curry

tcurry@nutter.com

Tel: (617) 439-2087

Kenneth F. Ehrlich

kehrlich@nutter.com

Tel: (617) 439-2989

Michael K. Krebs

mkrebs@nutter.com

Tel: (617) 439-2288


This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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