09/19/2024 | Press release | Distributed by Public on 09/19/2024 14:11
Four Things Banks and Fintechs Need to Know
September 19, 2024, Covington Alert
On September 17, 2024, the Federal Deposit Insurance Corporation ("FDIC") Board of Directors approved a proposal that would impose recordkeeping and other compliance requirements on custodial deposit accounts with transactional features (the "Proposed Rule" or "Proposal"). The Proposed Rule is intended to ensure that an insured depository institution ("IDI") has updated and accurate records reflecting the beneficial owners and ownership interests in a custodial account held by the IDI.
The Proposal is the FDIC's reaction to recent developments involving banking-as-a-service ("BaaS") technologies and concerns that the increasing complexities of relationships between third parties and banks present unique challenges in resolving failed IDIs. In particular, the Proposed Rule is motivated by the concern that IDIs do not have up-to-date and accurate records of beneficial owners in custodial deposit accounts, thereby potentially preventing the FDIC from timely making deposit insurance determinations and paying deposit insurance claims in the event of an IDI's receivership.
If the Proposed Rule is adopted, IDIs would be subject to a new, bespoke compliance regime for custodial deposit accounts. The Proposal would apply to many different types of custodial deposit accounts, including accounts without any connection to fintech customers or BaaS technologies, and would require IDIs to adopt policies and procedures, file annual certifications of compliance from senior executive officers, and prepare and submit annual reports. While it is difficult to predict the Proposed Rule's impact if it is adopted, the Proposal could reduce the efficiencies gained in many bank-fintech deposit arrangements that help reduce the costs to banks in gathering deposits. This Proposal, coupled with the FDIC's proposed revisions to its brokered deposit rule, could put substantial pressure on the cost structures for bank-fintech partnerships.
The Proposal requests comment on all aspects of the Proposed Rule, and also includes requests for comments on specific aspects of the Proposal, including the definition of "custodial deposit accounts with transactional features," exemptions, recordkeeping requirements, and compliance requirements. Comments on the Proposed Rule are due within 60 days of its publication in the Federal Register.
Here are four things for banks and fintechs to know about the Proposed Rule:
1. The Proposed Rule's recordkeeping and other compliance requirements would apply to a "custodial deposit account with transactional features," subject to certain exemptions.
The Proposal would define the term "custodial deposit account with transactional features" as "a deposit account: (1) established for the benefit of beneficial owners; (2) in which the deposits of multiple beneficial owners are commingled; and (3) through which beneficial owner(s) may authorize or direct a transfer through the account holder from the custodial deposit account to a party other than the account holder or beneficial owner."[1]The FDIC noted that it only intends to apply the proposed recordkeeping requirements of the Proposal to custodial deposit accounts that are established and used in a manner that allows beneficial owners to direct a transfer of funds from the account to another party or account (e.g., to make purchases or pay bills), and not custodial deposit account arrangements for which IDIs merely return the funds held in the account to the account holder or beneficial owner.
The FDIC specifically notes that the term "custodial deposit account' may have different meanings in other banking contexts, but the Proposal is not intended to address or affect any requirements that apply in other contexts in which the term "custodial deposit account" is used.
Certain types of custodial accounts that satisfy the definition of a "custodial deposit account with transactional features" would be exempt from the Proposed Rule's requirements:
Although there are 10 exceptions in all, the exceptions cover relatively narrow and isolated types of deposit accounts. Given that the definition of "custodial deposit account with transactional features" is broad, there are many types of custodial or third-party accounts that would be subject to the Proposed Rule.
2. An IDI would be required to maintain records in a standardized format and with certain data fields either in its own systems or through an arrangement with a third-party.
IDIs would be required to maintain records of beneficial ownership in custodial deposit accounts in a specified data format and layout that is described in Appendix A to the Proposed Rule. These records may be maintained by the IDI or "through a third party, including but not limited to any vendor, software provider, service provider, or similar entity in the business of maintaining or processing deposit transaction data…," including the account owner.
If the records are maintained by the IDI, the IDI would be required to implement internal controls "appropriate to its size and the nature, scope, and risk of its activities that include: (1) maintaining accurate balances of custodial deposit accounts with transactional features at the beneficial ownership level; and (2) conducting reconciliations against the beneficial ownership records no less frequently than at the close of business daily."
If the records are maintained by a third-party, such as the account holder, the IDI would be required to:
3. The Proposed Rule would establish a bespoke compliance regime for custodial deposit accounts that are in scope.
All IDIs with even a single custodial deposit account with transactional features would be subject to a new compliance regime established in the Proposed Rule that includes:[2]
4. The Proposed Rule's preamble and staff memorandum reference pass-through deposit insurance as an important consideration for custodial accounts but do not clarify the extent to which pass-through deposit insurance is dependent on an IDI's compliance with the Proposed Rule's requirements.
The Proposal notes that in order to accommodate the custodial deposit system, the FDIC makes available pass-through deposit insurance, which provides a mechanism for recognizing the owners of deposited funds and insuring their interests in the deposit to the same extent as if the owners had deposited the funds directly at the bank, provided certain conditions are met. The Proposed Rule does not state that an IDI is required to comply with its requirements in order for pass-through deposit insurance to be available, although it would be natural to assume this is the case.
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For more information about the Proposed Rule, please contact the following members of Covington's financial services practice.[1]Other defined terms in this definition are as follows:
[2]The FDIC noted, however, that this new compliance regime for custodial deposit accounts would not supersede or modify any requirements imposed by other statutes and regulations. For example, satisfying the Proposal's recordkeeping requirements would not necessarily satisfy an IDI's obligations under the BSA.