United States: Federal Agencies Seek Additional Limits On Permissible Banking Activities

Last Updated: September 13 2016
Article by Scott A. Cammarn

Most Read Contributor in United States, August 2018

The Board of Governors of the Federal Reserve System (the "FRB"), the FDIC and the Office of the Comptroller of the Currency ("OCC") (collectively, the "Agencies") conducted a study of the kinds of activities and investments that are permissible for banking entities, the associated risks of the activities, and how the risks are mitigated by those entities. The joint Report, mandated by Dodd-Frank Act, Section 620, was prepared for the Financial Services Committee, the U.S. Senate Committee on Banking, Housing and Urban Affairs, and the Financial Stability Oversight Council ("FSOC").

The FRB prepared the first section, which covers state member banks, depository institution holding companies, the Edge Act and agreement corporations, and the U.S. operations of foreign banking organizations. The FRB recommended, among other things, that Congress repeal:

  • the authority of Financial Holding Companies ("FHCs") to engage in merchant banking activities;
  • the grandfathered authority of certain FHCs to engage in commodities activities under section 4(o) of the Bank Holding Company Act;
  • the exemption that permits corporate owners of industrial loan companies to operate outside of the regulatory and supervisory framework that is applicable to other corporate owners of insured depository institutions; and
  • an exemption for Grandfathered Unitary Savings and Loan Holding Companies ("SLHCs") from the activities restrictions applicable to all other SLHCs.

The FDIC prepared the second section, which includes a "comprehensive review of the activities and investments in which state banks and state savings associations may engage." The FDIC emphasized that as a result of its findings, it intends to:

  • review activities related to investments in other financial institutions and equity investments in order to evaluate the interaction of existing FDIC regulations and certain supervisory approvals and conditions under part 362, along with more recent regulatory and statutory rules governing such investments, in order to determine whether changes to part 362 or related procedures with regard to such investments are needed; and
  • determine whether the prudential conditions and standards under which the FDIC will evaluate part 362 filings with respect to mineral rights, commodities or other non-traditional activities need to be clarified and, if so, consider issuing a statement of policy pursuant to its determination.

The OCC prepared the third section, which covers national banks, federal savings associations, and the federal branches and agencies of foreign banks. The OCC stated that, based on its findings, it intends to:

  • issue a proposed rule prohibiting federal banking entities from holding asset-backed securities that hold bank-impermissible assets;
  • address concentrations of mark-to-model assets and liabilities with a rulemaking or guidance;
  • clarify minimum prudential standards for certain national bank swap-dealing activities;
  • consider providing guidance on clearinghouse memberships;
  • clarify regulatory limits on physical hedging;
  • address national banks' authority to hold and trade copper; and
  • incorporate the Volcker Rule into the OCC's investment securities regulations.

Commentary / Scott Cammarn

The long-delinquent Joint Report under Dodd-Frank Section 620 – the report was due in January 2012 - recommends a handful of changes that may have varying impact on banking entities, but in all cases represent rollback of existing authority. The Fed's suggestion to repeal merchant banking authority - originally granted in 1999 - has the most widespread impact, and could affect the more than 500 financial holding companies (including foreign financial holding companies) across the U.S. The remaining Fed recommendations have a more isolated impact. For example, the proposed repeal of grandfathered commodity authority - also granted in 1999 – would impact only Goldman Sachs and Morgan Stanley. In that regard, it is interesting to note that the Fed's proposal did not indicate changes to the more limited physical commodity powers of financial holding companies granted under "complementary" authority relied on by 14 other financial holding companies. Complementary commodities authority - along with merchant banking and grandfathered commodities authority - was the subject to a 2014 advanced notice of proposed rulemaking by the Fed; yesterday's report seems to suggest that the Fed may be inclined to allow complementary physical commodities authority to survive in some fashion. Also interesting is the Fed's recommendation to close off the nonbank bank exemption for industrial loan companies – first created in 1986. This illustrates the agencies' continued disfavor for nonbank bank charters and perhaps signals that marketplace lenders may have difficulty garnering federal support for a non-traditional federal bank charter for internet lending. The above changes regarding merchant banking, grandfathered commodity authority and the ILC loophole – all will require legislation by Congress and thus may be slow in coming.

The changes proposed by the OCC can be accomplished by rulemaking and thus may occur more swiftly. Regarding the OCC's proposed changes, such as the narrowing of the investment securities authority and repeal of copper trading authority, will indirectly affect state banks and state branches of foreign banks, too, since their authority is indirectly derived from the National Bank Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions