Just yesterday, the House of Representatives passed a version of a new banking bill (the “Choice Act”). The Choice Act makes scores of efforts to cut back on the regulatory regime created under Dodd-Frank Act. Many of the changes are of principal interest to domestic banks but the provisions dealing with regulatory relief will be of interest to foreign banks doing business in the U.S.
Donald Trump has made this newsletter obsolete. This covers two months and there are almost no new or even proposed rules. In fact, I am covering developments that in the past were deemed so picayune that I would have left them out. The CFPB has published 30 pages of corrections and elaborations to a rule that was “finalized” in 2015—will it ever end.
Donald Trump was not kidding when he said he was going to stem the tide of new regulations affecting American businesses. The effect in the banking area has been an astounding collapse in activity at the banking agencies. During the first four months of 2017 there has been a dramatic reduction in new and proposed regulations. A comparison to 2016 will highlight these differences across the 10 federal agencies that we follow in order to prepare the regulatory newsletter.
Up to this point, the regulators in charge of the Resolution Plan process have focused only on the mega banks and have left the second and third wave filers alone. However, today, the Fed published comment letters on 16 second wave (banks with between $100 and $250 billion in nonbank assets) resolution plans that were filed in 2015 and some of the comments may provide suggestions on the types of steps that third wave filers could consider in order to demonstrate proactive resolution planning.
Donald Trump may make this newsletter obsolete. Further to the Trump effect on regulations: before January 23—the first government business day after the Inauguration—there were 7631 pages of new and proposed regulations under the auspices of the Obama administration. In the next 30 days, under the Trump regime only 3666 pages of new proposed and final regulations made it into the Federal Register. This is almost a 75% reduction in Federal Register page count so something is afoot. Not a single new or proposed rule worth mentioning was published since February 8. I was concerned at one point that the regulatory output was so low that no February report could be prepared—luckily, Trump himself is responsible for 50% of this report.
A Donald Trump effect was apparent with the January 26th Federal Register-- it was one of the shortest Federal Register volumes seen in some time—even the pre-holiday Registers sport more pages. The CFPB published a rule requiring incentive programs for sales of consumer products be subject to extraordinary controls adapted to such sales campaigns. These would be in addition to and perhaps duplicative of the requirements of primary federal regulators.
The banking agencies did not appear to be participating in the supposed frenzy of rulemaking that has been prompted by the Trump election. In one of the few instances in history where powers of banks were actually reduced, banks were restricted in their dealings with industrial metals. The CFTC proposed and adopted a variety of year-end regulations including related to position limits and aggregation of positions. Big banks are bearing the brunt of regulatory focus including new final rules on deposit account recordkeeping and disclosure of liquidity coverage.
On December 28, 2016, the OCC posted its final rule to prohibit national banks from dealing in or investing in industrial or commercial metals. This rule was proposed by the OCC in September 2016, and was approved in substantially the same form as the proposal.
Action Required Under the Volcker Rule by January 22, 2017.
Late Monday afternoon, the Fed announced that banks may seek an extension of time (up to five years) to hold and presumably arrange to sell their investments in or holdings of so-called “illiquid funds” that were made impermissible under the Volcker Rule. Under the most recent relief before Monday, these investments had to be “conformed” or sold by July 21, 2017. Many banks and banking interest groups had complained to the Fed that a variety of hedge funds and private equity funds were sold and operated to invest in “illiquid” assets and that forced sales of such investments before maturity would be a financial burden.
The CFPB issued another mega-rule on prepaid accounts—subjecting the industry to hundreds of pages of new rules. Flood insurance rules were changed to accept private flood insurance coverage. North Korea was named as a country of primary money laundering concern and this triggers certain actions for banks.