State regulators question timing, legality of OCC licensing proposal

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WASHINGTON — An association of state bank regulators delivered a broadside against the Office of the Comptroller of the Currency this week, accusing the national bank regulator of rushing a proposal to “update” banking licensing requirements that they say is a legal overreach.

John Ryan, CEO of the Conference of State Bank Supervisors, said in a comment letter that the OCC was attempting to ram through changes in bank merger law that would violate state authority.

“Our disappointment is only aggravated by the highly unusual process employed in issuing the proposal, by the questionable validity as to several aspects of the proposal, and by the general lack of clarity as to the intent and/or impact of many of the proposed reforms,” Ryan wrote in his letter to the OCC, dated May 4, the day the proposal’s comment period ended.

The agency issued the proposal on March 5, amid early signs of the coronavirus hitting the U.S.

A spokesperson for the OCC declined to comment, citing agency policy of not responding to individual comment letters in the rulemaking process. The spokesperson said the letter “will be considered in the development of the final rule.”
A spokesperson for the OCC declined to comment, citing agency policy of not responding to individual comment letters in the rulemaking process. The spokesperson said the letter “will be considered in the development of the final rule.”

Given the virus outbreak, Ryan said, the CSBS does “not understand how the OCC could conclude that this is an appropriate time to issue an over 60,000-word proposed rule containing over 2000 amendments to the OCC's licensing regulation."

Ryan also accused the OCC of adopting “a truncated notice-and-comment process” by setting the comment deadline 60 days after the proposal was published on the agency’s website rather than 60 days after being published in the Federal Register. The latter often provides commenters additional time given the lag between the issuance of a proposal and it being published in the FR.

A spokesperson for the OCC declined to comment, citing agency policy of not responding to individual comment letters in the rulemaking process. The spokesperson said the letter “will be considered in the development of the final rule.”

The OCC's notice of proposed rulemaking would eliminate certain “outdated” rules that govern corporate transactions, such as mergers, acquisitions and other activities. The proposal also included changes that would allow national banks to invest in entities not supervised by the OCC, and tweak how bank examiners incorporate “adverse comments” related to the Community Reinvestment Act into the bank merger approval process.

Ryan noted that while “current circumstances preclude an in-depth discussion of the substantive aspects of the proposal,” state regulators believe several of the proposed changes “are likely legally invalid” and the proposal did not clearly articulate the “intent and impact of, as well as the legal basis for, several other proposed amendments.”

The CSBS letter outlines several instances in which the state regulator association believed the OCC lacked the legal authority to make changes, ranging from conflicting case law to constitutional precedent.

“Corporate successorship and the transfer of fiduciary appointments, particularly in the context of transfers of rights and franchises from state to federal corporations are matters of constitutional import which Congress itself must resolve,” Ryan wrote.

But Ryan also emphasized that the letter’s listed grievances were not the only areas of the proposal likely to draw scrutiny. “Given the present need to devote resources to pandemic response and the time afforded to comment on the proposal, it is simply not feasible to ferret out and explain every instance of overreach,” he wrote.

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State regulators CSBS Coronavirus OCC M&A Licenses and charters
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