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Nutter Bank Report: December 2019

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  1. FDIC and OCC Propose CRA Modernization Rule with Opt-Out for Small Banks
  2. Massachusetts Securities Division Proposes Fiduciary Standard for Sale of NDIPS
  3. FDIC Proposes New Framework for Determining Which Deposits Are Brokered Deposits
  4. Federal Banking Agencies Issue BSA Guidance on Serving Hemp-Related Businesses
  5. Other Developments: Underwriting Standards and Marijuana Banking

1. FDIC and OCC Propose CRA Modernization Rule with Opt-Out for Small Banks

The FDIC and the OCC have jointly proposed amendments to modernize the agencies’ Community Reinvestment Act (“CRA”) regulations, which are intended to increase bank activity in low- and moderate-income communities. The proposed amendments published on December 12 would clarify what activities qualify for credit under the CRA and provide a process for confirming whether an activity would receive CRA credit. The agencies also propose to publish an illustrative list of CRA-qualifying activities. The proposed amendments aim to make the evaluation of a bank’s CRA performance more objective by establishing new performance standards based on benchmarks and thresholds that would be established prior to the bank’s CRA evaluation period. The proposed amendments would change the way CRA assessment areas are defined by requiring a bank to delineate additional assessment areas if it receives 50% or more of its adjusted retail domestic deposits from geographies outside of the areas around its main office, branches, and non-branch deposit-taking facilities comprising its traditional CRA assessment area. The proposed amendments would expand the definition of assessment areas to include areas from which a bank derives deposits to encourage banks to provide loans and other services to low- and moderate-income persons in those areas. Under the proposed amendments, banks with $500 million or less in total assets would be permitted to opt in to the new CRA framework or choose to continue to be evaluated for CRA compliance under the current performance standards to avoid the burden of the data collection, recordkeeping, and reporting requirements under the new performance standards. Comments on the proposed amendments to the CRA regulations will be accepted for 60 days after publication in the Federal Register, which is expected shortly. Click here for a copy of the proposed amendments, and here for a copy of the FDIC’s fact sheet on the proposed amendments.

Nutter Notes: The federal CRA regulations have not been substantively updated for almost 25 years, according to the FDIC and OCC. The agencies said that many of their proposed amendments are intended to address digital banking changes. For example, the proposed changes to the requirements for defining CRA assessment areas to add non-overlapping, deposit-based assessment areas where a bank has significant concentrations of retail domestic deposits is meant to recognize that some banks derive a significant portion of their deposits from digital banking activities, and would encourage banks to lend to low- and moderate- income borrowers living in those areas from which banks are deriving deposits from digital banking activities. In particular, the agencies intend that the proposed amendments would encourage lending in underserved areas, such as rural areas and tribal lands that are far from urban centers where bank branches are concentrated. The proposed amendments would also increase the loan size for CRA-qualifying small business loans and increase the revenue threshold for small businesses to encourage economic development and job creation.

2. Massachusetts Securities Division Proposes Fiduciary Standard for Sale of NDIPS

The Massachusetts Securities Division, overseen by Secretary of the Commonwealth William Galvin, has issued a proposal to amend its licensing regulation governing the conduct of broker-dealers, agents, investment advisers and investment adviser representatives, including those employed by banks, to apply a fiduciary conduct standard in connection with the sale of non-deposit investment products and services, including insurance products. The proposed amendments published on December 13 would apply the fiduciary standard of “utmost care and loyalty” to all investment advice and recommendations provided in the capacity of a broker-dealer, agent, investment adviser, or investment adviser representative regarding any investment strategy, the opening of or transferring of assets to any type of account, or the purchase, sale, or exchange of any security, commodity, or insurance product. Under the proposed amendments, the failure by any such person to comply with that fiduciary standard would be deemed a dishonest or unethical practice that would subject the violator to possible disciplinary action, which may include an administrative fine, censure, or denial, suspension or revocation of the violator’s professional license. The Securities Division will hold a public hearing on the proposed amendments at 9:30 a.m. on Tuesday, January 7, 2020 at its Boston offices in One Ashburton Place. Public comments on the proposed amendments are due by January 7, 2020. Click here for the Securities Division’s summary of the proposed amendments.

Nutter Notes: The Securities Division noted that investment advisers and investment adviser representatives are currently subject to fiduciary duties of care and loyalty to their clients under federal and state securities laws, but that broker-dealers and agents are permitted to provide certain investment advice while not being held to the same fiduciary standards. According to the Securities Division, the proposed new fiduciary standard of utmost care and loyalty is based on the common-law fiduciary principles of care and loyalty, and would obligate broker-dealers, agents, investment advisers, and investment adviser representatives to make recommendations and provide advice based on what is best for their customer or client, without giving consideration to the interests of any other person. The Securities Division’s proposed amendments would also clarify that compliance with the current regulation’s suitability standards would not constitute compliance with the new the fiduciary standard. In addition, the proposed amendments would also clarify that, for those relationships and transactions that are expressly excluded from the new fiduciary standard, such as advice and recommendations by those acting as ERISA fiduciaries and recommendations and advice provided to sophisticated institutional investors excluded from the definition of “customer” and “client,” the suitability standards would still apply.

3. FDIC Proposes New Framework for Determining Which Deposits Are Brokered Deposits

The FDIC has proposed amendments to its brokered deposit regulations that are intended to modernize the regulatory framework for analyzing whether deposits placed through certain deposit placement arrangements with a third party must be classified as brokered deposits. The proposed amendments published on December 12 would provide more objective tests to determine whether deposits resulting from arrangements with certain third parties, such as nonbank financial technology (fintech) companies, must be classified as brokered deposits. According to the FDIC, the proposed amendments aim to balance the need to promote safe and sound banking practices with the goal of ensuring that the rules governing the classification of brokered deposits appropriately reflect changes in the banking system, including the use of new technologies to engage and interact with customers. For example, the proposed amendments would revise the so-called “facilitation” prong of the definition of a deposit broker to apply to any person that engages in specified activities and provide that a wholly-owned subsidiary of a bank would be eligible for an exception to the definition of a deposit broker under certain circumstances. Comments on the proposed amendments to the brokered deposits regulation will be accepted for 60 days after publication in the Federal Register, which is expected shortly. Click here for a copy of the proposed amendments.

Nutter Notes: The classification of deposits as brokered under the FDIC’s regulation is determined by whether or not the third party involved in placing deposits with a bank is considered a deposit broker or qualifies under one of several exemptions from the definition of a deposit broker under the regulation. The proposed rule would establish a number of objective tests to provide greater certainty about whether a third-party’s deposit placement activities would cause that person to be classified as a deposit broker, resulting in the deposits placed by that person being classified as brokered. For example, a broker-dealer that sweeps uninvested cash balances into deposit accounts at a bank would meet the “primary purpose” exception to the definition of a deposit broker under the proposed amendments if the amount of customer funds it places represents less than a quarter of the total amount of customer assets it manages for its broker-dealer business. A broker-dealer that seeks to use the primary purpose exception based on this standard would be required to submit an application to the FDIC. According to the FDIC, if 25% or more of the customer assets the broker-dealer manages are placed at depository institutions, the FDIC would likely conclude that the primary purpose of the broker-dealer’s business is placing funds at banks unless it can provide sufficient information to the FDIC to rebut that presumption.

4. Federal Banking Agencies Issue BSA Guidance on Serving Hemp-Related Businesses

The federal banking agencies and the U.S. Department of the Treasury’s Financial Crimes Enforcement Network (“FinCEN”), in consultation with the Conference of State Bank Supervisors, have issued joint guidance on Bank Secrecy Act (“BSA”) compliance in connection with banking hemp-related businesses. The joint guidance released on December 3 explains that the Agriculture Improvement Act of 2018 (the “2018 Farm Bill”) removed hemp as a Schedule I controlled substance under the federal Controlled Substances Act (the “CSA”) and directed the U.S. Department of Agriculture (the “USDA”) to regulate hemp production. Consistent with the USDA’s October 2019 interim final rule establishing the domestic hemp production regulatory program, banks are no longer required to file suspicious activity reports (“SARs”) for customers engaged in the licensed growth or cultivation of hemp in compliance with federal law, according to the joint guidance. The USDA’s interim final rule establishes that state departments of agriculture and tribal governments may operate USDA-approved regulatory programs for hemp production, and establishes a federal licensing program for hemp producers in states and tribal territories that do not have USDA-approved programs. According to the joint guidance, banks are expected to follow standard SAR procedures for licensed hemp-related customers and file a SAR if evidence of suspicious activity warrants it. Click here for a copy of the joint guidance.

Nutter Notes: Although marijuana and industrial hemp are different varieties of the same plant species, hemp contains far lower concentrations of delta 9-tetrahydrocannabinol, or “THC,” the psychoactive ingredient in marijuana. The 2018 Farm Bill amended the definition of marijuana only to exclude hemp from the CSA, and marijuana is still a Schedule I controlled substance under the CSA. The USDA’s interim final rule includes requirements for hemp producers to maintain information on the land where hemp is produced, testing hemp for THC levels, and disposing of plants containing more than permissible levels of THC. The USDA’s interim final rule is in effect for the 2020 planting season. The joint guidance explains that bank customers engaged in hemp-related business activities are responsible for complying with applicable regulatory requirements, and banks may make their own risk-based decisions about the types of services and accounts to offer to hemp-related businesses. The joint guidance reminds banks that such risk-based decisions should consider compliance with applicable regulatory requirements for customer identification, suspicious activity reporting, currency transaction reporting, and risk-based customer due diligence. Notably, the joint guidance also confirmed that FinCEN’s guidance FIN-2014-G001, BSA Expectations Regarding Marijuana-Related Businesses, remains in effect for banking marijuana-related businesses that are illegal under the CSA, but legal at the state level under state licensing regimes. Banks may contact the USDA, state departments of agriculture, and tribal governments with questions about the 2018 Farm Bill and its legal hemp production regulations, according to the joint guidance. The joint guidance also stated that FinCEN plans to issue additional guidance after further reviewing and evaluating the USDA’s interim final rule.

5. Other Developments: Loan Underwriting Standards and Marijuana Banking

  • Federal Agencies Issue Guidance on the Use of Alternative Data in Underwriting

The federal banking agencies along with the CFPB and the NCUA have issued interagency guidance on the potential benefits and risks associated with the use of alternative credit data in loan underwriting by federally insured depository institutions, including banks, and nonbank lenders. The types of alternative data addressed in the interagency guidance released on December 13 include information not typically found in consumers’ credit reports or customarily provided by consumers when applying for a loan, such as cash flow data derived from reliable sources like a customer’s bank account records.

Nutter Notes: The interagency guidance advises banks and other lenders who are using or contemplating using alternative credit data to do so responsibly. According to the interagency guidance, the agencies recognize that the use of certain alternative data may present no greater risks than data traditionally used in the credit evaluation process, but certain types of data may present greater consumer protection risks, which warrant more robust compliance management. Click here for a copy of the joint guidance.

  • Key U.S. Senator Raises Concerns about SAFE Banking Act

The chairman of the U.S. Senate Committee on Banking, Housing and Urban Affairs has made a public statement opposing the version of the Secure and Fair Enforcement Banking Act of 2019 (the “SAFE Banking Act”) approved in September by the House of Representatives which, if it became law, would generally prohibit federal banking regulators from penalizing banks for providing services to state-licensed marijuana-related business. In his statement issued on December 18, Senator Mike Crapo, R-Idaho, said he has significant concerns “that the SAFE Banking Act does not address the high level potency of marijuana, marketing tactics to children, lack of research on marijuana’s effects, and the need to prevent bad actors and cartels from using the banks to disguise ill-gotten cash to launder money into the financial system.”

Nutter Notes: Senator Crapo also announced that he is inviting public feedback on ways to address public health and money laundering concerns that he expressed about marijuana banking. The committee the Senator chairs is currently considering the SAFE Banking Act. Click here for a copy of Senator Crapo’s statement.

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 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

Tel: (617) 439-2087

Kenneth F. Ehrlich

Tel: (617) 439-2989

Michael K. Krebs

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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