FDIC’s Board of Directors Considers Proposed Rulemaking Amending Regulations Implementing the Change in Bank Control Act

Regulatory Developments

FDIC’s Board of Directors Considers Proposed Rulemaking Amending Regulations Implementing the Change in Bank Control Act
On April 25, the FDIC’s board of directors met to consider competing resolutions introduced by Director Chopra and Director McKernan related to the CBCA, which generally requires prior notice to, and the non-objection of, the appropriate federal bank regulatory agency before a person, directly or indirectly, or acting in concert with others, may acquire control of an insured bank. Both resolutions were withdrawn, and no votes were taken on these matters. These proposals were prompted, at least in part, by concerns related to the increased “popularity” of index funds and the role of three large asset managers responsible for the index funds’ holdings of equity – including voting securities –  issued by the holding companies of many FDIC-supervised banks.

Under the proposal introduced by Director Chopra, the FDIC would have issued a notice of proposed rulemaking to remove an exemption contained in the FDIC’s CBCA regulations that exempts change in control transactions from the FDIC’s notice requirement in cases where the Board of Governors of the Federal Reserve System will review a notice for acquisition of control of an FDIC-insured bank’s holding company. This proposal also would have sought information and comment from the public on the FDIC’s approach for evaluating CBCA notices more generally. Chairman Gruenberg and Director Chopra supported this proposal, but it was not supported by any other Director, including Acting Comptroller Hsu. In declining to support the proposal, Director Hsu highlighted the need for any proposed rulemaking to be done on an interagency basis after public discussion and debate occurring prior to its issuance.

Under the proposal introduced by Director McKernan, the FDIC’s staff would monitor compliance by certain “investment fund complexes” with passivity commitments and other conditions in so-called “FDIC control comfort” (i.e., “regulatory comfort that fund complexes rely on to acquire and hold up to a specified percentage of the voting securities of one or more FDIC-supervised institution, or a controlling affiliate of an FDIC-supervised institution, without being considered to control the FDIC-supervised institution”) and make annual determinations as to whether the covered fund complexes control any FDIC-supervised banks. This proposal was supported by Vice Chair Hill, but not by Chairman Gruenberg or Directors Chopra or Hsu.

CFPB Issues Spotlight on Health Savings Accounts
On May 1, the CFPB issued a report and press release on HSA fees. The CFPB’s report examines consumer experiences and concerns with HSA plans and details the complex costs and fees associated with HSAs. Further, the report outlines the tax benefits of HSA plans, but notes that benefits are being offset by charges like monthly maintenance fees, paper statement fees, outbound transfer fees, and account closure fees. The report and press release were followed by a statement on the report by Director Rohit Chopra.

CFPB Reports that Higher Price Complexity Can Lead to Detrimental Outcomes for Consumers
On April 30, the CFPB issued a report on two laboratory experiments it conducted, finding that when prices are separated into multiple fees and are harder to understand, consumers have more difficulty comparing options, pay higher total prices, and pay more overall. The CFPB noted that the report findings have implications for understanding how junk fees impede fair and competitive pricing in markets like credit cards, deposit accounts, mortgages, and auto loans where consumers must evaluate a variety of factors such as extended warranties, add-ons, closing costs, and other fees, instead of one all-inclusive price.

“The resolution would also require a prescriptive set of monitoring procedures. This strikes me as a premature step to take prior to seeking notice and comment on a significant change in FDIC rule and practice.”
—   FDIC Chairman Martin J. Gruenberg, in his comments regarding FDIC Director Jonathan McKernan’s proposal

FDIC Board of Directors Releases Semiannual Update on Restoration Plan
On April 25, the FDIC board of directors released its semiannual update on the restoration plan for its DIF. The Federal Deposit Insurance Act requires the FDIC to restore the DIF reserve ratio to a statutory minimum of a 1.35% by September 30, 2028. This reserve ratio measures the fund balance relative to insured deposits. In 2022, the FDIC Board amended the restoration plan to ensure that this goal would be met, and this revision included a requirement that the FDIC make updates on the DIF reserve ratio at least semiannually. The April 25 semiannual update states that the DIF reserve ratio increased from 1.11% to 1.15% from June 30, 2023 to December 31, 2023.

FinCEN Reminds Financial Institutions to Remain Vigilant to Environmental Crimes
On April 22, FinCEN issued a reminder to financial institutions urging them to remain vigilant in identifying and reporting suspicious activity related to environmental crimes. FinCEN noted that these crimes often relate to its Anti-Money Laundering and Countering the Financing of Terrorism (AML/CFT) National Priorities, such as corruption and human trafficking. FinCEN outlined resources available for institutions seeking to combat environmental crimes, including its November 2021 Notice containing Suspicious Activity Report filing instructions and its December 2021 Financial Threat Analysis containing information on wildlife trafficking and trends identified in Bank Secrecy Act data.

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