February 2024 financial reporting, governance, and risk management

| 2/21/2024
FIEB February 2024

Message from John Epperson, Managing Principal, Financial Services

Like last month, February has been relatively quiet so far, but we know that quiet is not going to last for long. We are watching for the Financial Accounting Standards Board’s next meeting on purchased financial assets, which is of high interest for acquisitive institutions.

Speculation continues on the forthcoming Securities and Exchange Commission (SEC) final rule on climate. The latest estimate from the SEC is April 2024. Of course, the date is just that – an estimate. It could be sooner, it could be later. This month, the SEC continued its focus on professional skepticism and audit quality, including the role of the audit committee, with Chief Accountant Paul Munter issuing a statement.

This month also brought Office of the Comptroller of the Currency proposed revisions to the merger approval process, and the Federal Reserve Board announced the sunset of the Bank Term Funding Program in March. The Federal Financial Institutions Examination Council issued a statement on bias in real estate valuations, and the Consumer Financial Protection Bureau proposed a nonsufficient funds fee ban for instantaneous transactions – which today are uncommon.

I wish you well during this financial reporting season and look forward to keeping you informed.

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From the federal financial institution regulators

OCC proposes rules to revise merger approval process

On Jan. 29, 2024, the Office of the Comptroller of the Currency (OCC) issued for public comment a proposal on its review process for business combinations involving national banks and federal savings associations with other depository institutions under the Bank Merger Act. The proposal includes a policy statement and a regulatory amendment. If adopted, the policy statement would provide additional insight into the OCC’s assessment of proposed bank mergers by discussing:

  • Principles used by the OCC in reviewing applications, including a list of indicators typical to approved applications and a list of indicators that often give rise to supervisory concerns and a need for remediation prior to approval
  • Other statutory factors considered in the review process, including financial stability, financial and managerial resources and future prospects, and convenience and needs
  • Criteria informing the OCC’s decision to extend a comment period or to hold a public meeting on a bank merger transaction

The proposed regulatory amendment would eliminate the option of a less detailed, streamlined business combination application. It also would eliminate a provision allowing for an expedited review process for qualified applicants.

Per the OCC, the proposed regulatory amendment would apply to all national banks, federal savings associations, and federal branches and agencies of foreign banks. The proposed policy statement would apply to insured national banks, federal savings associations, and federal branches of foreign banks.

Comments are due April 15, 2024.

Fed announces end to bank term funding program

On Jan. 24, 2024, the Federal Reserve Board (Fed) announced that the Bank Term Funding Program (BTFP) will not be extended and will end on its original termination date of March 11, 2024. Institutions will continue to have access to the discount window after this date.

In ongoing support of the program’s goals in the current interest-rate environment, the Fed announced that the interest rate applicable to new BTFP loans has been adjusted as the program winds down. The rate on new loans made from the announcement date until the termination date will be no lower than the interest rate on reserve balances in effect on the day the loan is made. All other program terms remain unchanged.

FFIEC issues statement on examination principles related to bias in real estate valuations

On Feb. 12, 2024, the Federal Financial Institutions Examination Council (FFIEC) issued a statement on examination principles for identifying and mitigating discrimination or bias in residential property valuations. Emphasizing the importance of sound valuation practices, the FFIEC noted the risks that valuation discrimination poses to institutions that rely on real estate valuations to make residential credit decisions as well as the potential downstream harm to consumers.

The statement details critical principles used in consumer compliance and safety and soundness examinations. These principles include evaluation of an institution’s board and management oversight, consumer compliance and collateral valuation programs, risk management and governance, and valuation and credit risk review functions. According to the FFIEC, while the statement provides further insight into the examination process, it should not be interpreted as new guidance nor as a change in focus on valuation practices.

CFPB proposes ban on NSF fees for instantaneous transactions

On Jan. 24, 2024, the Consumer Financial Protection Bureau (CFPB) issued a proposal to ban covered financial institutions from charging nonsufficient fund (NSF) fees on transactions that are declined immediately or almost immediately upon a consumer’s attempt – including point-of-sale (POS) debit card transactions, ATM withdrawals, and certain person-to-person applications. The proposal would not apply to check or Automated Clearing House transactions, which are not instantaneously declined.

While the CFPB acknowledged that NSF fees are uncommon for ATM or POS transactions, the agency asserted the importance of establishing proactive regulations to address the growing ubiquity of instantaneous transactions and use of newer noncash payment methods, such as digital applications.

Comments are due March 25, 2024.

FinCEN issues proposal to impose BSA/AML requirements on investment advisers

On Feb. 13, 2024, the Financial Crimes Information Network (FinCEN) issued a proposal that, if adopted, would classify certain investment advisers as “financial institutions” per the Bank Secrecy Act (BSA), subjecting them to anti-money laundering and countering the financing of terrorism (AML/CFT) requirements under the BSA. Among other provisions, registered investment advisers and exempt reporting advisers would be required to implement AML/CFT programs, file suspicious-activity reports, and fulfill recordkeeping and information sharing requirements. -activity reports, and fulfill recordkeeping and information sharing requirements.

Comments are due April 15, 2024.

FinCEN updates FAQ on beneficial ownership information reporting

FinCEN updated its FAQ list on beneficial ownership information reporting throughout January, addressing inquiries such as:

  • What should a reporting company report if its ownership is in dispute?
  • Who does a reporting company report as a beneficial owner if a corporate entity owns or controls 25% or more of the ownership interests of the reporting company?
  • Is a third-party courier or delivery service employee who only delivers documents that create or register a reporting company a company applicant?
  • If an individual used an automated incorporation service, such as through a website or online platform, to file the creation or registration document for a reporting company, who is the company applicant?
  • Does a subsidiary whose ownership interests are partially controlled by an exempt entity qualify for the subsidiary exemption?
From the Securities and Exchange Commission (SEC)

Chief accountant calls for commitment to professional skepticism and audit quality

On Feb. 5, 2024, SEC Chief Accountant Paul Munter issued a statement on the importance of professional skepticism and the key roles of auditors and audit committees in conducting high-quality audits. Citing rising Public Company Accounting Oversight Board inspection deficiency rates, Munter urged auditors to be wary of potential pressures on management and other heightened fraud risks amid an evolving economic environment. He said that to help ensure high-quality audits, auditors should engage proactively with the audit committee, involve specialists when further expertise is necessary, train engagement teams to be aware of bias, and empower staff to exercise professional skepticism. He added that it is the auditor’s responsibility to wield such skepticism in assessing management’s judgment and in collecting and evaluating audit evidence.

Munter also spoke on the role of the audit committee, stating that the audit committee should consider a firm’s inspection results and other quality metrics and measures when appointing an auditor. The audit committee should engage in regular dialogue with the auditor, asking questions about the partner’s involvement and the team’s requisite experience and knowledge. Munter noted that both auditors and audit committees should remember their responsibility to protect the interests of investors rather than prioritizing the interests of management.

SEC issues final rules on SPAC transactions

On Jan. 24, 2024, the SEC adopted final rules on initial public offerings (IPOs) conducted by special purpose acquisition companies (SPACs) and on subsequent business combination transactions, commonly known as de-SPAC transactions. The final rules, which include new guidance and regulatory changes alongside enhanced disclosures, better align requirements and legal obligations in such transactions with those of traditional IPOs.

Among other provisions, the final rules introduce new mandatory disclosures for SPAC IPOs – including information about the SPAC structure, planned de-SPAC timeline, risks, and governance. Filings for both SPAC IPOs and de-SPAC transactions must include disclosures about the SPAC sponsor, potential conflicts of interest, and potential shareholder dilution. The final rules also require additional disclosures for de-SPAC transactions, including a disclosure of the board of directors’ determination of whether a specific de-SPAC transaction is advisable and in the best interests of the SPAC and its shareholders (when mandated by the jurisdiction in which the SPAC is organized).

The final rules also introduce regulatory updates, making the target company a co-registrant in a de-SPAC transaction, thereby subjecting target company executives to legal liability for material registration statement errors or omissions. They designate any business combination involving a shell company (including, but not limited to, SPACs) as a sale of securities to the shell company’s shareholders. The rules also introduce provisions on the use of projections broadly applicable to all SEC filers, as well as requirements on projections and forward-looking statements specific to SPAC transactions.

The final rules provide guidance on identifying underwriters in a de-SPAC transaction and assessing whether a SPAC qualifies as an investment company under the Investment Company Act of 1940. They also require re-determination of smaller reporting company status following a de-SPAC transaction and require a 20-day minimum dissemination period for security holder communication materials in connection with such transactions. Certain structured data extensible business reporting language (XBRL) requirements are also included within the final rules.

The final rules become effective 125 days after publication in the Federal Register. Structured data requirements become effective 490 days after publication.

For more details on the final rules, see the Crowe article “SEC Final Rules Enhance Disclosures for SPAC IPOs.”

SEC adopts final rules on the definition of “dealer”

On Feb. 6, 2024, the SEC adopted final rules on statutory definitions of a dealer or a government securities dealer – specifically, providing clarification on the qualifier of a person who does not buy or sell securities “as a part of a regular business,” which exempts such persons from registering with the commission under the Securities Exchange Act of 1934. Addressing concerns about market participants that engage in significant liquidity-providing activities but were not previously required to register as dealers due to the exemption, the new rules specify that either of the following activities would entail buying or selling securities as part of a regular business:

  • “Regularly expressing trading interest that is at or near the best available prices on both sides of the market for the same security, and that is communicated and represented in a way that makes it accessible to other market participants”
  • “Earning revenue primarily from capturing bid-ask spreads, by buying at the bid and selling at the offer, or from capturing any incentives offered by trading venues to liquidity-supplying trading interest”

The final rules become effective 60 days after publication in the Federal Register. Affected market participants will have one year from the effective date to comply with dealer registration requirements.

SEC adopts final amendments to Form PF requirements

On Feb. 8, 2024, the SEC and the Commodity Futures Trading Commission (CFTC) jointly adopted final amendments to private fund reporting Form PF. The amendments require enhanced reporting from certain SEC-registered investment advisers to private funds, including:

  • Enhanced reporting for large hedge fund advisers on qualifying hedge funds with a net asset value of at least $500 million, including enhanced information on risk and exposure, investment performance by strategy, and financing and investor liquidity
  • Enhanced reporting for advisers and their private funds, including enhanced information on assets under management and asset value, withdrawal and redemption rights, inflows and outflows, borrowings and types of creditors, beneficial ownership, and fund performance
  • Separate reporting for “each component fund of a master-feeder arrangement and parallel fund structure” and aggregate reporting for trading vehicles used by reporting funds

In addition, the amendments remove the aggregate reporting requirement on hedge funds by large hedge fund advisers.

Entities have one year after publication in the Federal Register to comply with the amended Form PF requirements.

SEC denies rulemaking petition on no admit/no deny policy

On Jan. 30, 2024, the SEC denied a petition for rulemaking to amend the commission’s “no admit/no deny” policy. The policy currently prevents defendants from denying allegations when entering into a settlement with the commission, requiring defendants to either admit the allegations or to state that they neither admit nor deny the allegations. SEC Chair Gary Gensler and Commissioner Hester Peirce issued statements on the decision.

From the Public Company Accounting Oversight Board (PCAOB) 

PCAOB provides insights into broker-dealer audit deficiencies

The PCAOB, on Jan. 30, 2024, published a spotlight report, “Insights Into the PCAOB’s Interim Inspection Program Related to Audits of Broker-Dealers," in which the board identifies and discusses the potential factors that contributed to the high deficiency rates identified in the interim inspection program. The PCAOB identified the following factors:

  • Insufficient understanding of the broker-dealer industry
  • Lack of professional skepticism
  • Lack of rigor in risk assessment and internal controls
  • Inexperience with PCAOB standards
  • Ineffective engagement quality review
  • Overreliance on standardized audit programs
  • Low-cost providers and the pace of auditor changes

In addition, the report provides reminders for auditors.

PCAOB announces 2024 advisory group members

On Feb. 7, 2024, the PCAOB released the names of the 2024 members of the Investor Advisory Group (IAG) and the Standards and Emerging Issues Advisory Group (SEIAG). The announcement identified the new 2024 appointments whose two-year term will expire Dec. 31, 2025, as well as continuing members whose terms expire Dec. 31, 2024.

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