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, September 2017

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.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.