New Exam Handbook Sparks Fears of Higher Bar for Small Banks

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WASHINGTON — A new exam handbook released by the Office of the Comptroller of the Currency is sparking concerns that the agency is quietly expanding heightened regulatory standards meant for larger banks to smaller institutions.

The handbook, released late last month, is ostensibly a rehash of previously published guidance for examiners, meant to collect in one place how they should look at an institution's corporate and risk governance.

But some experts said it goes much further.

"It's not just the agency vacuuming up pieces of corporate governance guidance and putting [them] into a single document. It's much more than that," said Julie Williams, a former acting comptroller of the currency who is now a managing director at Promontory Financial Group. It's "upping the ante on corporate and risk governance."

The handbook provides guidance for examiners on how to judge a bank's risk strategy, ranging from how a plan is put in place to the handling of specific issues like cybersecurity, capital planning and investments in innovative products.

But the handbook appears to cover new ground in detailing the types of responsibilities boards are subject to.

For example, the document is interspersed with references to the OCC's so-called heightened expectations, a set of guidelines issued in 2014 that generally apply only to banks with $50 billion or more in assets. The standards detail how financial institutions must establish their risk governance framework.

Some argue that the handbook could effectively expand the heightened expectations to smaller banks not covered by the guidelines by introducing new lines of questions during exams.

It "applies to a much, much larger group of institutions than heightened standards," Williams said.

The OCC insists that's not the case.

"It's really the same information just brought together and showing how it all relates," Beth Dugan, the OCC's deputy comptroller for operational risk, said in an interview. "We don't use our handbooks to signal anything. These are for examiners."

"The only [institutions] that have to meet the heightened standards" are those covered by the formal guidelines, Dugan added. "It's clearly delineated in the handbook and boxed off."

But the handbook uses language similar to that of the heightened-expectations guidance, including calling for board directors to be in a position to pose a "credible challenge to management."

It is "certainly consistent with the heightened standards," said Hu Benton, vice president of banking policy at the American Bankers Association. Benton added that the 2014 guidelines "were really about good governance in general, and there is much in there that good banks of all sizes have been doing since forever."

The exam handbook was released at the same time as a corresponding manual for board of directors. That is also causing concerns because it contains subtle changes that might worry investors.

Directors' "primary duty," according to the document's latest update, is "to ensure the bank operates in a safe and sound manner." In the book's previous iteration published in 2010, bank directors were expected only to "protect the bank."

"Directors will have a panic attack if they read this," said Chris Cole, the executive vice president and senior regulatory counsel at the Independent Community Bankers of America.

The exam handbook, Cole said, does specify a bank's governance strategy should be "commensurate with the bank's size, complexity and risk profile." But, he added, "I would have wished that they could have in fact had a separate section just on community banks."

Both documents also clarify what roles board members are expected to play in a bank's leadership, a development that could reassure banks that regulators aren't mixing up the functions of managers and board members.

The exam handbook "does a better job than the regulators have done up to now in recognizing that the roles are distinct and should not be conflated," Benton said. "Getting boards more involved in the day-to-day running of banks is crossing the line."

Instead, the handbook seems to call for directors to maintain a bird's eye view of an institution's risk strategy.

"There's greater emphasis on exercising independent judgment," and "on the need for a board to set a tone at the top and establish a highly ethical culture," said Eric Fischer, a senior fellow at the Boston University Center for Finance, Law & Policy.

The more forward-looking approach could help banks develop better cybersecurity defenses.

"It's a reminder to directors that risks are dynamic they're not stagnant," said Kevin Petrasic, a partner at White & Case and a former official at the Office of Thrift Supervision. "What you see today may be very different than what you see a year from now."

But banks worry the new documents are likely to make the director's job less attractive, particularly for community banks already struggling to draw in and retain qualified board members.

These publications could help the OCC push a case to court, Petrasic said. Though state law would dictate the types of charges it could pursue, the OCC could use the exam handbook and director's guide to define what negligence looks like for directors in the context of a bank failure.

The OCC insists the document was not made with that goal in mind. "That is not the purpose of this handbook," Dugan said. "Again, this handbook is guidance for our examiners to use."

Still, the laundry list of standards the OCC expects directors to abide by is likely to be read with a certain amount of apprehension by the board members of community banks, industry representatives said.

"Becoming the director of a small bank these days is a much more difficult and challenging and time challenging job than it used to be," Fischer said. "The banks and their directors get punished when there's an economic downturn. The regulator always gets to make his criticism or her criticism in hindsight."

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