There has been a flurry of activity at the Commodity Futures Trading Commission (“CFTC”) in recent weeks.  As we reported previously, the CFTC approved three final rules, including the much-anticipated position limits rule, at its October 15 open meeting, and announced significant organizational changes to its operating divisions on November 3.  This post highlights additional significant actions by the CFTC in October and November and previews what is next for the CFTC under a Biden Administration.

Continue Reading CFTC News Roundup for October and November and a Look Ahead

On October 27, 2020, the Office of the Comptroller of the Currency (“OCC”) issued a final rule that determines when a national bank or Federal savings association (collectively, “banks”) makes a loan and therefore is the “true lender” in the context of a partnership between a bank and a third party.  The rule provides that a bank makes a loan if, as of the date of origination, it (1) is named as the lender in the loan agreement or (2) it funds the loan.  It differs from the proposed rule only in providing that, in the case where one bank is named as the lender in the loan agreement and a different bank funds the loan, the bank named in the agreement is the one that makes the loan.

Continue Reading OCC Issues True Lender Rule

At an open meeting on October 15, 2020, the Commodity Futures Trading Commission (“CFTC” or the “Commission”) voted to adopt three final rules.  First, the Commission adopted by a 3–2 vote a final rule overhauling its regulatory framework governing speculative position limits on a large variety of commodities.  Second, the Commission unanimously approved amendments to margin requirements for uncleared swaps for swap dealers and major swap participants.  Third, the Commission unanimously voted to finalize amendments to Regulation 3.10(c), which sets forth exemptions from registration for certain foreign intermediaries.

Continue Reading CFTC Approves Three Final Rules at Open Meeting

On September 30, 2020, the Federal Reserve released a proposal to update its capital planning requirements in a number of respects, including to integrate the capital plan rule with the Federal Reserve’s October 2019 final rules tailoring its enhanced prudential standards.  The proposal would make the following notable changes:

  • Replacement of Company-Run Stress Testing for

On September 15, 2020, the Consumer Financial Protection Bureau (“CFPB” or “Bureau”) released an Outline of Proposals under Consideration and Alternatives Considered for the small business data collection rulemaking mandated by Section 1071 of the Dodd-Frank Act and a High-Level Summary of the outline of proposals.  The release signals that a Small Business Advisory Panel will convene in October 2020 as required by the Small Business Regulatory Enforcement Fairness Act of 1996 (“SBREFA”) to assess the impact of the Bureau’s outline of proposals under consideration.  Participants in the SBREFA panel are invited to submit written comments by November 9, 2020; other interested stakeholders are invited to submit written comments by December 14, 2020.

Section 1071 amends the Equal Credit Opportunity Act to require financial institutions to collect certain data regarding applications for credit for women-owned, minority-owned, and small businesses, maintain records of responses, and report the data to the CFPB on an annual basis, in accordance with rules and guidance issued by the CFPB.  The purpose of Section 1071 is “to facilitate enforcement of fair lending laws and enable communities, governmental entities, and creditors to identify business and community development needs and opportunities of women-owned, minority-owned, and small businesses.”  15 U.S.C. § 1691o-2(a).

The Bureau’s proposals under Section 1071 have been long-awaited by industry associations, consumer groups, state regulators, Congress, and many other stakeholders, and the convening of the SBREFA panel represents the start of a rigorous and potentially lengthy rulemaking process.

A short list of highlights of the proposals follows after the jump, and we plan to publish a more detailed client alert on the CFPB’s outline of proposals in the near future.

Continue Reading CFPB Outlines Small Business Data Collection Proposals

At open meetings on Wednesday, July 22, and Thursday, July 23, the CFTC approved, by a 3-2 vote, two significant final rules implementing provisions in the Dodd-Frank Act.  The first rule imposes capital requirements on swap dealers (“SDs”) and major swap participants (“MSPs”) that are not subject to supervision by a banking regulator, as well as financial report requirements for all SDs and MSPs.  The second rule addresses the cross-border application of the SD and MSP registration thresholds and establishes a formal process for requesting comparability determinations for such requirements from the CFTC.  Each final rule is summarized below.
Continue Reading CFTC Adopts Final Rules on Capital Requirements and Cross-Border Application of the Registration Thresholds for Swap Dealers and Major Swap Participants

Today, July 7, 2020, the Consumer Financial Protection Bureau (“CFPB”) released final amendments to its small-dollar lending rule published in November 2017 (the “2017 Rule”), specifically repealing the mandatory underwriting provisions of the rule.  The CFPB did not rescind or alter the payments provisions of the 2017 Rule, and instead ratified those provisions and will move forward to implement those provisions.  We address each aspect of the final amendments below.

Continue Reading CFPB Finalizes Amendments to Payday Lending Rule

On May 28, 2020, the Commodity Futures Trading Commission (CFTC) unanimously approved an interim final rule in order to grant an extension of the compliance schedule for uncleared swaps in response to the many operational challenges entities are facing in the wake of the COVID-19 (coronavirus) pandemic. It also approved a proposed rule exempting certain foreign persons from registration as a commodity pool operator (CPO). Recently, the CFTC extended previous waves of no-action relief in response to the coronavirus.

Continue Reading CFTC Approves Both Interim Final Rule and a Proposed Rule and Extends No-Action Relief in Response to Covid-19

On May 20, 2020, the Office of the Comptroller of the Currency (the “OCC”) issued a final rule overhauling its regulations implementing the Community Reinvestment Act (the “CRA”).  The CRA, enacted in 1977, incentivizes banks to meet the credit needs of their entire communities, including low- and moderate-income neighborhoods.  The final rule makes the first

On May 29, 2020, the Office of the Comptroller of the Currency (the “OCC”) issued a final rule to clarify that the interest on a loan originated by a national bank (or a Federal savings association), if permissible when the loan was originated, continues to be permissible after the loan is sold, assigned, or otherwise transferred to a third party. The OCC’s regulation interprets section 85 of the National Bank Act, which prescribes the interest that a national bank may charge a loan, to incorporate the common law “valid-when-made” doctrine.

Continue Reading OCC Issues Final Rule Clarifying Permissible Interest on Loans Sold to Third Parties by National Banks and Federal Savings Associations