United States: How Senate Bill Would Change Compliance For Midsize Banks

On March 14, the U.S. Senate passed S. 2155, the Economic Growth, Regulatory Relief, and Consumer Protection Act, on a 67-31 vote.1 The measure makes modest reforms to the Dodd-Frank Wall Street Reform and Consumer Protection Act generally aimed at relieving some of the regulatory burdens imposed on community and midsized banks.2 While a number of senators criticized the bill as going too far in rolling back Dodd-Frank provisions, the legislation was crafted on a bipartisan basis by Senate Banking Committee Chairman Mike Crapo, R-Idaho, and several of the committee's Democratic members. Ultimately, 16 Democratic senators plus Sen. Angus King, I-Maine — over a third of the Democratic caucus — joined all Senate Republicans in passing the measure.

The Senate bill has many elements in common with the U.S. Treasury Department's 2017 recommendations on banking regulation reforms. It remains unclear, however, how the bill will be resolved with the House's actions on regulatory reform, which include passage of a much broader Dodd-Frank rollback — the Financial Choice Act — last year, as well as separate action on various pieces of the broader bill. Nevertheless, with the Senate now having passed a regulatory reform bill with a strong bipartisan majority, the prospects for enactment of legislation on the topic this year have greatly improved.

Overview of the Senate Bill

The Economic Growth Act, if enacted, will modify the Dodd-Frank Act, as well as other financial regulatory laws, to address various issues that have been raised in the nearly eight years since the Dodd-Frank Act's passage. Most of the provisions in the Economic Growth Act are focused on providing regulatory relief to banking organizations with less than $10 billion in total consolidated assets. The Economic Growth Act also includes an amendment to raise the asset threshold for bank holding companies to $250 billion from the current $50 billion for automatic treatment as a systemically important financial institution, or SIFI, under Section 165 of the Dodd-Frank Act, as well as the applicability of the enhanced prudential standards to those institutions ($100 billion by agency action tailored to the institution). Other sections of the Economic Growth Act address mortgage reform, insurance regulation, consumer protections for veterans and other consumers, borrower relief for student loans, and changes to securities rules to ease burdens associated with capital formation.

The Economic Growth Act would also require a number of studies and reports by various federal agencies, including reports on cyberrisks, algorithmic trading, and supervision of consumer reporting agencies. These provisions, if passed, would be an added bonus for regulatory reform, but the provisions focused on reducing regulatory burden and costs for community banks, or as some on the Hill would call it, regulatory relief for "Main Street," is what will allow the legislation to garner the bipartisan support needed in Congress to become law. Below is a brief summary of notable provisions in the bill related to major regulatory relief for community and midsized regional banks, as well the outlook for the Economic Growth Act being enacted into law.

Tailoring of Prudential Banking Laws and Regulations

Changes to SIFI Designation Standards and Application of Enhanced Prudential Standards

Under current law, bank holding companies with $50 billion or more in assets are automatically deemed to be systemically important. Other financial entities (including savings and loan holding companies, insurance companies, and others) are only regulated as systemically important if so designated by the Financial Stability Oversight Council. The FSOC process for designating SIFIs takes size into consideration as one of the several assessment factors. To date, only four organizations have been designated as SIFIs under the FSOC process, and three of those designations have since been rescinded. The Board of Governors of the Federal Reserve System is responsible for supervising and developing enhanced prudential standards for all SIFIs. However, the agency has yet to finalize capital standards applicable to nonbank insurance company SIFIs.

Title IV, Section 401 of the Economic Growth Act would amend Section 165 of the Dodd-Frank Act by raising the threshold for automatic SIFI designation of domestic bank holding companies and foreign banks operating in the U.S. through branches or agencies, along with the accompanying application of enhanced prudential standards to such entities, from $50 billion to $250 billion. Bank holding companies with consolidated assets between $50 billion and $100 billion would be exempt from enhanced prudential standards immediately. Bank holding companies with total consolidated assets above $100 billion but below $250 billion would be eligible for exemption from certain enhanced prudential standards 18 months after enactment of the bill. The Federal Reserve Board would, however, retain the authority to apply certain enhanced prudential standards to such institutions on a case-by-case basis and would be required to continue to conduct periodic supervisory stress tests of such institutions.

If enacted into law, this amendment to the SIFI designation rules would result in approximately a dozen US bank holding companies with more than $50 billion but less than $250 billion in consolidated assets being stripped of the SIFI designation, and would eliminate the $50 billion ceiling that has held some community and midsize banks from pursuing expansionary opportunities. Although not referenced in the bill, this change might lead to the FSOC choosing to raise the minimum threshold from $50 billion to $100 billion for when it will consider a nonbank financial company for potential review for designation as a SIFI.

This amendment would also result in a more tailored framework for the Federal Reserve Board's supervisory review of large bank holding companies and would significantly reduce the compliance costs and burdens imposed on most institutions. Currently, the Federal Reserve Board applies essentially the same regulatory requirements to all bank holding companies above $50 billion, with the exception of certain additional obligations for the largest institutions (i.e., those above $250 billion). However, Section 401 would help address industry criticism that the Federal Reserve Board's enhanced prudential standards rules, which are designed around the activities and risk profiles of the largest institutions, do not offer allowances for midsized and less complex organizations, which, while not posing the same systemic risks as their much larger interconnected counterparts (i.e., global systemically important banks), nevertheless face the same compliance burdens.

Supplementary Leverage Ratio and Treatment of Certain Custodial Deposits and Municipal Bonds

Section 402 of the Economic Growth Act would require federal prudential banking regulators (i.e., Federal Reserve Board, Office of the Comptroller of the Currency, and Federal Deposit Insurance Corporation) to amend their supplementary leverage ratio (SLR) rules for custodial banks to exclude funds of a custodial bank that are placed with the Federal Reserve Banks, the European Central Bank, and certain other central banks that are member countries of the Organization for Economic Cooperation and Development. This amendment would address criticisms that the Federal Reserve Board's enhanced SLR rule — which requires banking organizations subject to the rule to maintain a specified amount of loss-absorbing capital to cover total leverage exposure, including off-balance sheet liabilities — imposes unnecessary burdens on the holding companies of custodial banks.3 The amendment would require that the SLR rules, as applied to custodial banks, better fit the business models of custodial banks, which routinely place cash balances with central banks and hold short-term government securities for the purpose of safeguarding such assets. While members of the Federal Reserve Board have indicated that the agency will consider excluding deposits of a custodial bank held with central banks from the SLR calculations of the custodial bank, this amendment would mandate the exclusion.

In addition, Section 403 of the Economic Growth Act would require the federal prudential banking regulators to classify qualifying investment grade, liquid and readily marketable municipal securities as level 2B liquid assets, or "high quality liquid assets' (HQLA) under the agencies' liquidity coverage ratio (LCR) rule. Under the LCR rule, banks subject to the rule are required to hold a minimum amount of HQLA that can be readily converted into cash in periods of financial stress. The initial LCR rule did not include U.S. municipal securities as HQLA, but the Federal Reserve Board issued regulations in April 2016 classifying certain U.S. municipal securities as such. This amendment would mandate continued treatment of municipal bonds as HQLAs, and therefore make investments in such municipal bonds more attractive to covered banks.

Community Bank Regulatory Relief

Title II of the Economic Growth Act includes provisions that would provide regulatory and compliance relief to banking organizations with $10 billion or less in total consolidated assets.

Exemption From the Volcker Rule for Banking Entities With $10 billion or Less in Consolidated Assets, and Names of Investment Funds

Section 203 of the Economic Growth Act would amend Section 619 of the Dodd-Frank Act, commonly referred to as the Volcker Rule, by exempting banking organizations with $10 billion or less in total consolidated assets, and total trading assets and trading liabilities no more than 5 percent of their total consolidated assets, from restrictions on proprietary trading and ownership of, and affiliation with, hedge funds and private equity funds. This amendment would significantly reduce compliance costs and burdens, as well as regulatory risk, for community banking organizations that are currently subject to the complex Volcker Rule framework.

The Volcker Rule also prohibits banks and their affiliates from having names similar to private funds they sponsor or advise. Section 204 of the Economic Growth Act would remove this restriction and allow hedge funds and private equity funds to have the same name or variation as a "banking entity" that is an investment adviser to the fund, subject to certain conditions: The banking entity/investment adviser cannot be a bank holding company, an insured depository institution, or a company that controls a depository institution, nor can it share the same name as any such institutions, and the name cannot contain "bank." Under this amendment, investment advisers of banks would be allowed to have a similar brand name to their advised private funds (as well as U.S. Securities and Exchange Commission-registered mutual funds). The investment advisers would also need to have a different name from their affiliates. The removal of this restriction is not limited by the asset size of the banking organization.

Changes to Capital Requirements and Regulatory Reporting Forms for Community Banks

Section 201 of the Economic Growth Act would amend Section 171 of the Dodd-Frank Act, commonly referred to as the Collins Amendment, by requiring the federal prudential banking regulators to establish a community bank leverage ratio (tangible equity to average consolidated assets) at a percentage not less than 8 percent and not greater than 10 percent to replace the general applicable risk-based capital requirements for all banking organizations under the Basel III capital rules. In the amendment, "community bank" is defined as a depository institution or depository institution holding company with less than $10 billion in total consolidated assets and a low risk profile, as determined by the federal prudential banking regulators. Any community bank that maintains equity in excess of the community bank leverage ratio would be deemed in compliance with general leverage and risk-based capital requirements and be deemed well-capitalized for purposes of Section 38 of the Federal Deposit Insurance Act.4 Federal banking regulators are also mandated under the proposed amendment to establish procedures for treatment of a "qualified community bank" that has a community bank leverage ratio that falls below the minimum percentage, and to consult with the applicable state banking agencies in carrying out their responsibilities under the amendment. As the Basel III capital rules were designed in large part to address conditions believed to have caused the 2008 financial crisis, many industry observers have argued that the Basel III rules, as a result, impose unnecessary burdens on community banks that were not engaged in the risky activities against which the Basel III rules protect. For example, community banks have argued that the higher capital ratios under Basel III capital rules unnecessarily impair their ability to lend to individuals and companies in their communities. The implementation of the proposed community bank leverage ratio would also help reduce the costs, time and resources that the community banks currently have to expend in complying with the complex Basel III capital rules.

In addition to revising capital rules applicable to community banks, Section 205 of the Economic Growth Act would amend Section 7(a) of the FDIA to require the federal banking regulators to allow reduced reporting requirements during the first and third reporting periods annually for certain depository institutions with less than $5 billion in total consolidated assets, and that otherwise satisfy requirements of the federal banking agencies.5 On Jan. 9, 2017, the federal banking regulators issued a new short-form call report for banks with $1 billion or less in total assets. This amendment would raise the asset threshold from $1 billion to $5 billion, thereby allowing more banking organizations to benefit from a reduction of regulatory burden associated with preparing their quarterly call reports.

Increase in Threshold From $1 Billion to $3 Billion for Applicability of the Small Bank Holding Company Policy Statement and the 18-Month Examination Cycle

Section 207 of the Economic Growth Act would raise the asset threshold for the applicability of the Federal Reserve Board's Small Bank Holding Company Policy Statement for bank holding companies and savings and loan holding companies from $1 billion to $3 billion.6 The asset threshold was most recently raised in February 2015 from $500 million to $1 billion, as mandated by Pub. L. 113-250 (Dec. 18, 2014). Holding companies that qualify for treatment under the Federal Reserve Board's Small Bank Holding Company Policy Statement (1) are able to engage in higher leveraged acquisitions, (2) qualify for expedited and waived application and notice filings, and (3) are exempt from the leverage- and risk-based capital requirements for holding companies of depository institutions mandated under Section 171 of the Dodd-Frank Act, the Collins Amendment.7 Under Section 20 of the FDIA, well-managed and well-capitalized depository institutions with total consolidated assets of $1 billion or less are eligible for an extended 18-month examination cycle, and Section 210 of the Economic Growth Act would raise that asset threshold from $1 billion to $3 billion. The asset threshold was most recently raised from $500 million to $1 billion in February 2016, as mandated under Pub. L. 114-94, 129 Stat. 1312 (2015). The current examination cycle for institutions that do not meet the $1 billion asset threshold is 12 months; therefore, this amendment would allow more banking organizations to benefit from reduced regulatory compliance costs associated with annual examinations by the various federal banking agencies.

Section 214 of the Economic Growth Act prohibits federal banking regulators from requiring a depository institution to assign a heightened risk weight to a high volatility commercial real estate (HVCRE) exposure under any risk-based capital requirement, unless the exposure is an "HVCRE ADC" loan, as defined in the statute. Under the Basel III capital rules, all HVCRE loans are required to be reported separately from commercial real estate loans and assigned a risk weighting of 150 percent for risk-based capital purposes. Prior to the implementation of the Basel III capital rules, such loans were assigned a risk weight of 100 percent. The proposed amendment would eliminate a banking organization unnecessarily having to hold additional capital for HVCRE loans that are performing and that do not otherwise pose a threat to the financial stability or safety and soundness of the banking organization.

Qualified Mortgage Status Extended to Loans Held in Portfolio

Section 129C(a) of the Truth in Lending Act, as amended by Sections 1411 and 1412 of the Dodd-Frank Act, requires creditors to make a reasonable and good-faith determination of a borrower's "ability to repay" before making a mortgage loan. Currently, to demonstrate compliance with the "ability to repay rule," covered institutions must either meet the somewhat onerous requirements under Section 129C(a) or show that the mortgage qualifies for Section 129C(b)'s safe harbor as a "qualified mortgage" or "QM," as defined in the statute. Section 101 of the Economic Growth Act would amend TILA to add a safe harbor for banking organizations and credit unions with less than $10 billion in total consolidated assets for demonstrating that their loans meet the criteria for "QM" status and thereby qualify for the presumption demonstrating compliance with the "ability to pay" rule. This amendment would allow community banks to exercise greater discretion and apply professional judgement in assessing a borrower's ability to repay, rather than be required to apply onerous underwriting standards that may not align with the borrower's lending profile and extend loans that will qualify for QM status, provided that the bank retains the loan in its portfolio.

Exception From Broker-Dealer Restrictions for Certain Reciprocal Deposits

Section 202 of the Economic Growth Act would amend Section 29 of the FDIA to clarify that, subject to various conditions, reciprocal deposits of another insured depository institution obtained using a deposit broker through a deposit placement network for purposes of obtaining maximum deposit insurance would not be considered brokered deposits subject to the FDIC's brokered-deposit regulations, provided that the reciprocal deposits do not exceed the lesser of $5 billion or 20 percent of the depository institution's total liabilities. This amendment would assist community banks by allowing them to engage in reciprocal deposit networks with other banks to obtain deposits outside of their geographical footprint, which in turn may be loaned to the bank's local customers in the form of small business loans, as well as mortgages, auto loans and other consumer loans.


With the bill now having passed the Senate, bicameral negotiations with the House will be necessary, to at least some extent, to determine how the two chambers will reconcile their regulatory reform efforts. While it remains unclear what form bicameral negotiations will take, House Financial Services Committee Chairman Jeb Hensarling, R-Texas, understands the Senate dynamics enough to know that the House-passed Financial Choice Act is not a realistic starting point for negotiations. Hensarling made a number of statements in the days leading up to Senate passage of S. 2155, making clear that he rejected the notion that the House would simply pass the Senate bill as is, and expressed his desire to have a conference committee produce a final product. In anticipation of passage of the Senate bill, Hensarling released a list of nearly 30 House bills (each with some level of bipartisan support) that he would like to see on the negotiating table. A few of these bills have similarities with provisions in the Senate bill, but many do not. Some senators have warned that the Senate's bill represents a delicate compromise, and that deviating too far from that agreement could imperil the bill's chances of passing the Senate a second time. Final enactment will be contingent upon the bicameral negotiations and the ability of the Senate leadership to continue to attract bipartisan support for the legislation through its negotiations with the House.


1 Economic Growth, Regulatory Relief, and Consumer Protection Act, S. 2155, 115th Cong. (2017).

2 Pub. L. 111-203, 124 Stat. 1376 (2010)

3 Regulatory Capital Rules: Regulatory Capital, Enhanced Supplementary Leverage Ratio Standards for Certain Bank Holding Companies and Their Subsidiary Insured Depository Institutions, 79 Fed. Reg. 24528 (May 1, 2014).

4 12 U.S.C. § 1831.

5 S.C. § 1817(a).

6 Small Bank Holding Company and Savings and Loan Holding Company Policy Statement, codified at 12 C.F.R. § 225, Appendix C.

7 Id.; Pub. L. 111-203, § 171, 124 Stat. 1376 (2010).

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