March 2022 financial reporting, governance, and risk management

| 3/16/2022
March 2022 financial reporting, governance, and risk management

Message from John Epperson, Managing Principal, Financial Services

Dear FIEB readers,

The world has changed in just the past month, which makes us all the more thankful we can share with you our financial reporting, governance, and, in particular, risk management insights. Risk comes in many forms, and managing risk can be as much an art as it is a science. Knowledge and understanding of risk, however, is often a game changer. This month we share perspectives on global financial risk from the Financial Stability Board, thoughts on materiality and financial statement errors from the SEC’s acting chief accountant, the SEC’s rule proposal on cybersecurity risk management and disclosure, and quarterly banking and credit union highlights from the federal financial institution regulators.

We also outline the FDIC’s 2022 priorities, which include consideration of climate risk. Speaking of climate, you might wish to mark your calendars for SEC’s open meeting on Monday, March 21 at 11 a.m. Eastern, where the SEC will consider whether to propose climate-related disclosures.

Whatever arises in the world of financial reporting, governance, and risk in the coming months, we commit to keeping you informed.

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Matters of importance from the federal financial institution regulators

FDIC issues quarterly banking profile for fourth quarter 2021

The Federal Deposit Insurance Corp. (FDIC) released, on March 1, 2022, the quarterly banking profile covering the fourth quarter of 2021. According to the report, FDIC-insured banks and savings institutions reported $63.9 billion quarterly net income, an increase of $4.4 billion or 7.4% from a year ago. Full-year net income increased $132.0 billion or 89.7% from 2020. The increase is attributable primarily to negative provision expenses coupled with improved economic conditions and stronger credit quality.

The report provides these additional fourth quarter statistics:

  • Net interest income increased 4.4% from the previous year, totaling $137.2 billion. From the previous year, the average net interest margin decreased 12 basis points to 2.56%.
  • Noninterest income, compared to the previous year, grew 3.4%, driven by higher trading revenue and investment banking fees.
  • Total loans and leases increased $326.0 billion (3.0%) from the previous quarter.
  • Net charge-offs decreased by $5.6 billion (49.5%) from a year ago, and the total net charge-off rate declined 21 basis points to 0.21%.
  • From the previous quarter, the noncurrent loan rate declined by 5 basis points to 0.89%. Noncurrent loan balances (those 90 days or more past due) declined $3.1 billion (3.0%).
  • Community banks’ net income increased 7.1% year over year.

The total number of FDIC-insured commercial banks and savings institutions declined to 4,839 from 4,914 the previous quarter. During the fourth quarter no new banks were chartered, 74 banks were absorbed by mergers, and no banks failed. The number of institutions on the FDIC’s problem bank list declined by two from the third quarter, to 44.

NCUA issues fourth quarter 2021 performance data

The National Credit Union Administration (NCUA) reported, on March 7, 2022, quarterly figures for federally insured credit unions based on call report data submitted to and compiled by the agency for the fourth quarter of 2021. Highlights include:

  • The number of federally insured credit unions declined to 4,942 from 5,099 in the fourth quarter of 2020. In the fourth quarter of 2021, 3,100 federal credit unions and 1,842 federally insured, state-chartered credit unions existed.
  • Total assets reported for federally insured credit unions rose by 11.7% to $2.06 trillion, up $215.8 billion from a year ago.
  • Net income at an annual rate totaled $20.9 billion, up $8.9 billion (74.6%) from the previous year.
  • The return on average assets increased significantly from 70 to 107 basis points compared to a year ago.
  • The credit union system’s net worth increased by $21.2 billion, or 11.1% over the year to $211.6 billion. The aggregate net worth ratio was 10.26% in the fourth quarter of 2021, down from 10.32% in the fourth quarter of 2020.

OFAC imposes sanctions on Russia, FinCEN issues alert

As a result of the current situation in Ukraine, the U.S. and the global community have enacted a striking number of financial sanctions in a short period of time. The Office of Foreign Assets Control (OFAC) has imposed a variety of complex sanctions and export controls targeting individuals and entities as specially designated nationals and has placed certain areas of the Russian economy on the Sectoral Sanctions Identifications List. Adding to the complexity of these sanctions is the rise in popularity of crypto assets and their potential use in evading sanctions.

U.S. regulators and government representatives have warned financial markets and organizations about managing the impact of the OFAC sanctions and the risk of entities using crypto assets to skirt the sanctions. On March 7, 2022, the Financial Crimes Enforcement Network (FinCEN) published a FinCEN Alert (FIN-2022-Alert001), “FinCEN Advises Increased Vigilance for Potential Russian Sanction Evasion Attempts,” which specifically highlights risk related to convertible virtual currency, a term that includes crypto assets. Additionally, the alert identifies 13 red flags that institutions should be aware of as they work to comply with the new sanctions.

The Crowe article “Heeding the Call to Manage Crypto and OFAC Sanctions Risk” includes more details on how institutions can manage hidden risks of crypto sanctions.

FDIC acting chair announces 2022 priorities

With the resignation of Chair Jelena McWilliams from the FDIC effective Feb. 4, 2022, Martin Gruenberg took over as acting chair, and on Feb. 7 he promptly outlined FDIC priorities for the remainder of 2022. Gruenberg noted five primary focus areas for the FDIC in 2022:

  • Strengthening the Community Reinvestment Act, working jointly with the Federal Reserve (Fed) and the Office of the Comptroller of the Currency (OCC)
  • Addressing financial risks posed by climate change
  • Reviewing the bank merger process
  • Evaluating crypto asset risk to determine the extent to which banking organizations can safely engage in activities related to crypto assets
  • Finalizing the revised regulatory capital framework that was delayed by the pandemic

Specific to climate change, Gruenberg said the agency will seek public comment on guidance to help banks prudently manage those risks, establish an FDIC working group on climate-related financial risks, and join the international Network of Central Banks and Supervisors for Greening the Financial System.

FSB warns of crypto asset risk to global financial stability

The Financial Stability Board (FSB) released a comprehensive report on Feb. 16, 2022, which concludes that the fast-evolving crypto asset market could present a threat to global financial stability.

The report examines vulnerabilities relating to three segments of crypto asset markets: unbacked crypto assets (such as bitcoin), stablecoins, and decentralized finance (DeFi) and crypto asset trading platforms. The FSB points out the “close, complex, and constantly evolving interrelationship between these three segments, which need to be considered holistically when assessing related financial stability risks.”

In the report, the FSB acknowledges some significant data gaps that impede risk assessments of crypto assets because of trading and lending platforms falling outside of regulatory boundaries and reporting requirements. The FSB also warned that crypto asset participants, products, and markets “may be failing to comply with applicable laws and regulations.”

Fed expands proposal for master account applications

The Fed, on March 1, 2022, issued a proposal for a tiered framework for reviewing applications for master accounts that provide access to the Fed’s payment services. The Fed originally issued a proposal in May 2021, amid growing requests from fintech firms and other nonbank providers to gain access to the payments system.

In the supplemental March 1 notice, the Fed is re-proposing its principles for evaluating requests for accounts and services and is providing more clarity on the process. The Fed is proposing to establish a three-tiered review framework for different types of entities requesting a Fed master account. Tier 1 would consist of eligible federally insured institutions and would be a streamlined review. Tier 2 would be an intermediate-level review for eligible institutions that are not federally insured but are subject to supervision by a federal banking agency and for any holding company that would be subject to Fed oversight by statute or by commitments.

Tier 3 would consist of eligible institutions that are not federally insured and not subject to prudential supervision by a federal banking agency at the institution or holding company level and thus “would receive the strictest level of review.”

Comments are due April 22, 2022.

CFPB outlines options for automated valuation models

The Consumer Financial Protection Bureau (CFPB), on Feb. 23, 2022, outlined options to ensure that computer models used to help determine home valuations are accurate and fair and that they help prevent algorithmic bias. The Dodd-Frank Wall Street Reform and Consumer Protection Act requires the CFPB, working jointly with other federal regulators, to provide rules to strengthen oversight of the models to “ensure a high level of confidence in the estimates,” “protect against the manipulation of data,” “avoid conflicts of interest,” and “require random sample testing and reviews.”

The CFPB recognizes that computer models and algorithms are valuable tools for mortgage lenders and appraisers to improve valuation accuracy. However, the bureau noted that automated valuation models also could pose fair lending risks to homebuyers and homeowners. The CFPB is particularly concerned that without proper safeguards in place, “flawed versions of these models could digitally redline certain neighborhoods and further embed and perpetuate historical lending, wealth, and home value disparities.”

The options will be reviewed to determine their potential impact on small businesses and financial institutions as required by the Small Business Regulatory Enforcement Review Act.

CFPB highlights focus on auto lending market

In a blog post on Feb. 24, 2022, the CFPB signaled that it intends to increase its focus on auto lending activities. The authors noted that prices for new and used cars have increased significantly over the past year and that they “expect that both the total amount of debt and the average loan size will continue to increase and that larger car loans will put increased pressure on some consumers’ budgets for much of the next decade.”

Given the increase in loan amounts, the extended length of loan terms, and the uncertainty around the ongoing economic recovery, the CFPB will closely monitor lender practices and consumer outcomes. In particular, the bureau will continue to evaluate lending structures in which lenders seem to rely on high interest rates and fees to profit whether or not consumers fail.

In a related issuance, a Feb. 28, 2022, CFPB compliance bulletin signaled that the CFPB will hold auto loan holders and servicers “accountable for [unfair, deceptive, or abusive acts and practices] related to the repossession of consumers’ vehicles.” The bulletin reminds lenders and servicers of existing laws regarding auto repossessions and provides examples of conduct that might violate the law.

From the Securities and Exchange Commission (SEC)

SEC acting chief accountant releases statement on materiality and financial statement errors

On March 9, 2022, Paul Munter, the SEC’s acting chief accountant, released a public statement outlining views on assessing the materiality of financial statement errors from the perspective of a reasonable investor. Munter provided reminders on the concept of materiality, thoughts on the importance of objectivity when assessing materiality, and observations from recent fact patterns SEC staff has addressed. Munter also reminded practitioners of SEC staff availability for consultation.

SEC acting chief accountant releases statement on FASB agenda consultation

On Feb. 22, 2022, SEC acting Chief Accountant Munter issued a “Statement on the FASB’s Agenda Consultation: Engagement With Investors and Other Stakeholders Vital to Development of High Quality Accounting Standards.” In the statement, he noted that in response to the Financial Accounting Standards Board’s (FASB’s) June 2021 Invitation to Comment, “Agenda Consultation,” approximately one-third of the more than 500 responses received were from investors or other financial statement users. Munter said, “It is critically important that the FASB, and the Trustees of the Financial Accounting Foundation (the ‘FAF’) in its important oversight role over the FASB, continue to improve processes for obtaining and considering investor and other stakeholder feedback, and for clearly communicating with those stakeholders regarding how that feedback has impacted the standard-setting process.” Munter encouraged all stakeholders to continuously engage with the FASB in the standard-setting process and encouraged investors to share perspectives on what information is useful to them and how they could use that information. He noted that it is important for investors and other stakeholders to understand how their feedback is considered by the FASB, so the FASB should continue to focus on improving transparency in its communications of the types of investors the FASB engages with, the diverse extent and nature of investor feedback, and how the FASB considers investor feedback.

In addition, because the objective of financial reporting is to provide decision-useful information to investors and other users of financial reports, Munter noted that the FASB should be transparent about how projects would benefit investors and other financial statement users to meet this objective. In its decisions to add projects to its agenda or make changes to its standards, the FASB should make a clear case for change and should consider the expected costs for preparers and users as well as benefits of a change. Munter highlighted a few examples of current projects where there is diversity in views, including intangibles and subsequent accounting for goodwill, disaggregation of financial reporting information, climate-related transactions and disclosures, and digital assets.

As the FASB considers feedback, Munter said he believes it should keep in mind “the importance of: 1) making the case for change; 2) appropriately scoping projects to make timely, meaningful, and achievable changes while ensuring appropriate due process is used throughout the standard-setting life cycle; and 3) continuing to seek investor and other stakeholder input.” In conclusion, Munter reiterated the importance of the FAF and FASB’s focus on improvement and their efforts to better address the significant and evolving needs of investors. Munter said he looks forward to the continued progress and improvements in incorporating investors’ feedback into the standard-setting process.

SEC proposes cybersecurity disclosures

On March 9, 2022, the SEC proposed new cybersecurity incident and risk management, strategy, and governance disclosures, which would:

  • Require disclosure in Form 8-K within four business days of the determination of a material cybersecurity breach
  • Require periodic disclosures about, among other items:
    • The entity’s policies and procedures to identify and manage cybersecurity risks, including whether the entity considers cybersecurity to be part of its business strategy, financial planning, and capital allocation
    • Management’s experience in assessing and managing cybersecurity risk and its role in implementing the entity’s policies, procedures, and strategies
    • The entity’s board of directors’ cybersecurity expertise and its oversight of cybersecurity risk
    • Updates about previously reported material cybersecurity incidents
    • A series of previously undisclosed individually immaterial cybersecurity incidents that has become material in the aggregate

The proposal would require cybersecurity disclosures to be filed using inline extensible business reporting language (inline XBRL).

Comments are due 30 days after publication in the Federal Register or May 9, 2022, whichever is later.

Division of Trading and Markets addresses broker-dealer risk

On March 14, 2022, Division of Trading and Markets staff issued a reminder to broker-dealers and other stakeholders to remain vigilant to market and counterparty risks in light of the current period of volatility and uncertainty.

SEC proposes short sale disclosure rule, order marking requirement, CAT amendments

The SEC, on Feb. 25, 2022, proposed rule changes that would provide greater transparency to investors and regulators by increasing the public availability of data related to short sales. New Exchange Act Rule13f-2 would require institutional investment managers who exercise investment discretion over short positions meeting specified thresholds to report on the proposed Form SHO information relating to end-of-the-month short positions and certain daily activity affecting such short positions. Under the proposed rule, the SEC would aggregate the data by security and publicly distribute the aggregate data to all investors. This aggregate data would supplement the short sale data currently available from the Financial Industry Regulatory Authority and stock exchanges.

Additionally, the SEC proposed a new provision of Regulation SHO, Rule 205, to create a new “buy to cover” order marking requirement for broker-dealers. Regulation SHO requires a broker-dealer to identify each sale order that it effects as either “long,” “short,” or “short-exempt”; however, it does not include such a requirement for purchase orders. This proposed rule would require a broker-dealer to mark a purchase order as “buy to cover” if the purchaser has any short position in the same security at the time the purchase order is entered.

The SEC also proposed to amend the national market system plan governing the consolidated audit trail (CAT) to require CAT reporting firms to report “buy to cover” information. The proposed amendments include a provision that would require each CAT reporting firm to indicate where it is asserting use of the bona fide market making exception under Regulation SHO.

Comments are due April 26, 2022.

SEC reopens comment period for securities loans reporting proposal

On Feb. 25, 2022, the SEC reopened the comment period for its proposed rule on reporting securities loans. The original proposed rule of Nov. 18, 2021, was intended to strengthen the transparency and efficiency of the securities lending market by requiring lenders of securities to provide the material terms of securities lending transactions to a registered national securities association. That association would then make available to the public certain information concerning each transaction and aggregate information on securities on loan and available to loan.

In reopening the comment period, the SEC is requesting comment on any potential effects of the proposed Securities Exchange Act of 1934 Rule 13f-2 regarding short sale disclosure that the SEC should consider in determining whether to adopt the proposed Exchange Act rule regarding the reporting of securities loans.

Comments are due April 1, 2022.

SEC commissioner remarks on regulating lawyers

At a Practicing Law Institute program on March 4, 2022, SEC Commissioner Allison Herren Lee gave a speech addressing Section 307 from the Sarbanes-Oxley Act, which mandates the adoption of minimum standards of professional conduct for attorneys appearing and practicing before the SEC in the representation of issuers. Section 307 addresses the concern that lawyers were acting in the interests of the executives who hired them and not in the interests of those to whom they owed that responsibility. Lee highlighted that to date the SEC has adopted only one standard that requires lawyers to report certain potential violations up the chain of management inside a corporate client, and the SEC has never enforced any actions against lawyers under this standard. She said this mandate calls for a broader set of rules to address the accountability of lawyers and that a set of standards should be established to better protect investors and markets. Lee focused on several areas that need to be addressed including the gate-keeping role of lawyers, lawyers who provide the answers that management desires when there are not supporting facts, the impacts of bad advice related to corporate disclosures, and the inadequacy of current standards.

Among other suggestions, Lee offered a few thoughts on areas that minimum rules should address, including:

  • A lawyer’s obligation to a corporate client, including how advice should reflect the interests of the corporation and its shareholders rather than the executives who hire the lawyer
  • The impact of the advice on the corporation and its shareholders, including the impact if the disclosure decision ultimately proves incorrect
  • Advice on materiality
  • Competence and expertise requirements
  • Firm oversight including a system of quality control
  • Independence requirements when providing advice

In closing, Lee stated “That is the goal of standards in this space – to support securities lawyers in giving clients their best advice while living up to the promise of public service that our profession embraces.”

SEC commissioner remarks on the PCAOB

On Feb. 15, 2022, before the Stanford Law School Federalist Society, SEC Commissioner Hester M. Peirce presented remarks on the Public Company Accounting Oversight Board (PCAOB). She said the PCAOB is not working alone and has a small but very important role to play in the broader economy. Peirce noted that the economy is all about working with other people to enable all participants to survive and prosper and that auditors have a part in the cooperation and collaboration as high-quality financial statements enable investors to determine whether to invest money in a company. As auditors play a role in producing high-quality financial reporting, so too do audit regulators and accounting and audit standard-setters. On this point, Peirce highlighted the role of the PCAOB by first touching on its history and then describing certain obstacles and challenges the PCAOB has faced and will face in the current marketplace and in the future. She described the unusual structure of the PCAOB where the SEC has responsibility for overseeing the PCAOB’s activities and approving its budget. This structure also creates duplication in setting standards, enforcement actions, and independence requirements.

Finally, she warned of the PCAOB’s potential involvement in environmental, social, and governance (ESG) issues and said that its involvement in the ESG area could “undermine the ability of the PCAOB to play its role as neutral arbiter of audit quality.”

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