#2021-38, December 3, 2021

Court’s Stay of OSHA Vaccine ETS Remaining in Place Through December 10

Based on a court order filed just before the Thanksgiving holiday, the federal Fifth Circuit Court of Appeal’s stay of the Occupational Safety and Health Administration’s (OSHA) Emergency Temporary Standard (ETS) mandating COVID vaccinations or testing for companies with 100 or more employees will remain in place until at least December 10.  The briefing order was issued by the Sixth Circuit, which was chosen to hear the consolidated case after the Fifth Circuit issued its order.  We anticipate that any decision by the Sixth Circuit will result in an appeal to the Supreme Court.

MBA Joins State Associations, ABA in Urging Senate to Include SAFE Banking Act in NDAA

In a letter to the Senate this week, the Association joined more than 50 state banking associations and the American Bankers Association in urging the Senate leadership to include the SAFE Banking Act in the National Defense Authorization Act (NDAA) when it comes to the floor for debate.  As we reported previously, the bill’s language was included in the House version of NDAA, which was passed in September.

The MBA-supported SAFE Banking Act provides clarity to financial institutions wishing to serve legitimate cannabis businesses by creating a safe harbor for depository institutions serving these businesses in states where medicinal or recreational cannabis is legal.  As we have reported previously, more than 35 states have legalized cannabis, but current federal law prevents banks from safely banking cannabis businesses, including ancillary businesses that provide them with goods and services.

To read the letter, click here.

CFPB Publishes Reports on Overdraft, Bank Fee Revenues

Earlier this week, the Consumer Financial Protection Bureau (CFPB) published reports detailing the agency’s research into overdraft and other bank fees at all depository institutions.  According to the reports, three types of aggregate fee revenues—maintenance fees, ATM fees and overdraft fees—all declined in 2020, with overdraft fees seeing the greatest decline at 26.2 percent.  Between 2015 and 2019, overdraft fees were increasing about 1.7 percent annually.

The report also looked at “overdraft/NSF reliance,” which the bureau defined as “the share of overdraft/non-sufficient funds fees among the three fees listed in the Call Reports.”  Reliance on overdraft fees remained consistent between 2015 and 2018 before increasing slightly in 2019.  Fee reliance fell in 2020, likely due to increased bank account balances and lower consumer spending during the pandemic.

A separate report also provides an overview of overdraft fees at smaller banks and credit unions, based on information supplied by core processors from 2014.  The CFPB noted that this data “may not always reflect current practices and outcomes,” but represents “the most detailed and wide-ranging quantitative data the bureau or others have collected on overdraft practices at small institutions.”

In the press release accompanying the reports, the Bureau noted that it “will be enhancing its supervisory and enforcement scrutiny of banks that are heavily dependent on overdraft fees.”  CFPB Director Rohit Chopra also added that, “We will be taking action to restore meaningful competition to this market.”

To read more and download the reports, click here.

Banking Agencies Plan to Issue Cryptocurrency Guidance for Banks

The federal banking agencies recently announced that they are planning to issue guidance over the next year that clarifies the types of cryptocurrency-related activities in which banks may be permitted to engage.  The joint release from the Federal Deposit Insurance Corporation (FDIC), the Federal Reserve, and the Office of the Comptroller of the Currency (OCC) also includes a crypto-asset roadmap that will guide the agencies’ work on this issue in 2022.

Specifically, the regulators stated that they will issue guidance related to crypto-asset safekeeping and traditional custody services; ancillary custody services; facilitation of customer purchases and sales of crypto-assets; loans collateralized by crypto-assets; the issuance and distribution of stablecoins; and activities involving the holding of crypto-assets on a bank’s balance sheet.  The statement also notes that they will evaluate how to apply bank capital and liquidity standards to crypto-assets.

To read more, click here.