Federal financial regulators

Summary

The federal financial regulators did not close banks. They did something the Suspension Clause reaches just as directly: from March 6, 2020 forward they issued, in a continuous stream through the third quarter of 2021, the instruments that told every regulated financial institution how to operate while the State and local orders closed lobbies, emptied offices, halted appraisals, cancelled shareholder meetings and moved the workforce home. Read together, the 103 exhibits in this folder are the federal record that the operation of the financial-services trade was changed by governmental action in every one of the six claimable quarters. 2020 Q2 (the run-up from March 13). The FFIEC's Interagency Statement on Pandemic Planning (Mar. 6) told institutions to plan for facility closures and remote operation (Ex. 001). On March 13 the Federal Reserve (SR 20-4), the OCC (Bulletin 2020-15) and the FDIC (FIL-17-2020 and the FAQ of FIL-18-2020) recognized that banks 'may need to temporarily close or otherwise reduce access to a facility,' told them to notify the supervisor and offer drive-through and digital alternatives, and confirmed that no application was needed to do so (Exs. 003-006). The OCC and the Federal Reserve then identified which bank employees were 'essential critical infrastructure workers' entitled to move under State stay-home orders (Exs. 012, 013, 031). The agencies suspended and then resumed examinations (Exs. 011, 021, 032, 043, 046), deferred appraisals for 120 days after closing (Exs. 016, 017, 040, 103), deleted the six-per-month transfer limit on savings deposits so that customers could bank without visiting a branch (Ex. 018), authorized telephonic and electronic shareholder, director and member meetings for national banks and federal savings associations (Exs. 019, 020) and, for federal credit unions, an emergency bylaw permitting virtual annual meetings without an in-person quorum (Exs. 030, 047). The SEC found on March 4 that 'disruptions to transportation, and limited access to facilities, support staff, and professional advisors' warranted a 45-day filing extension for every Exchange Act filer (Ex. 050), superseded on March 25 to reach filings due through July 1, 2020 (Ex. 056); it exempted funds and advisers from in-person board votes and filing deadlines (Exs. 051, 052, 055, 057, 058), transfer agents from processing and record-keeping requirements (Ex. 054), municipal advisors from Form MA deadlines (Ex. 059), and Form ID filers from notarization (Ex. 060), and its staff told issuers how to move annual meetings online (Ex. 053). The CFTC's Market Participants Division issued no-action letters permitting futures commission merchants, introducing brokers, swap dealers, floor brokers and exchange members to operate from 'alternative or remote location[s]' without the recording and time-stamping systems the regulations require (Exs. 067-069). FINRA told broker-dealers on March 9 that they could open temporary remote offices without Form BR filings and suspended the Form U4 office-address requirement (Ex. 074). The Treasury Department and the IRS postponed the April 15 filing and payment dates to July 15, 2020 for every taxpayer (Notices 2020-17, 2020-18, 2020-20 and 2020-23, Exs. 077-079, 082), suspended installment-agreement payments, liens, levies and in-person examination meetings under the People First Initiative (Ex. 080), closed every Taxpayer Assistance Center to walk-in service (Ex. 085 records the appointment-only reopening on June 29, 2020), and gave employers the deposit relief that made the ERC and the FFCRA credits payable by retained deposits (Ex. 081). The Export-Import Bank waived deadlines for exporters and their lenders (Mar. 12), created four temporary financing programs (Mar. 25) and restricted export support for PPE (Apr. 14) (Exs. 090-092). FHFA directed the Enterprises to accept desktop and exterior-only appraisals and verbal employment verifications (Mar. 23) and to buy loans in forbearance (Apr. 22) (Exs. 098, 099). 2020 Q3 and Q4. The relief instruments were renewed rather than retired: the SEC extended transfer-agent relief to June 30 and the in-person board relief to December 31, 2020 and thereafter until a staff termination notice (Exs. 062, 064); the CFTC extended its no-action positions to September 30, 2020 and then January 15, 2021 (Ex. 071); the FFIEC agencies issued examiner guidance (June 23) and the statement on additional loan accommodations (Aug. 3) (Exs. 022, 023); the NCUA moved to a phased return to on-site work (July 6) and extended its temporary regulatory relief to December 31, 2021 (Exs. 046, 048); EXIM extended its relief through October 31, 2020 and then April 30, 2021 (Exs. 095, 096); FHFA extended the appraisal and verification flexibilities month by month; FINRA adopted temporary Rule 3110.17 permitting remote branch inspections for 2020 and 2021 (Ex. 076). 2021 Q1 and Q2. The IRS postponed the 2021 individual filing season to May 17, 2021 (Notice 2021-21, Ex. 084). The CFTC continued its no-action positions to March 31 and April 15, 2021 (Ex. 072) and, on April 13, 2021, to September 30, 2021 (Ex. 073). FHFA's final extension carried the origination flexibilities to May 31, 2021 (Ex. 100). The NCUA renewed its PCA relief by administrative order of April 26, 2021, in place until March 31, 2022 (Ex. 049). EXIM's Board extended its temporary programs to April 2022 (Ex. 097). 2021 Q3. The instruments in force on July 1 and September 30, 2021 are listed in q3_2021_in_force: CFTC Letter 21-10 (floor-broker location relief to Sept. 30, 2021); the SEC in-person board relief (in force until terminated by public notice; the Commission's own FAQ recorded it as continuing); NCUA Letter 21-CU-04 and the April 26, 2021 administrative order (to Mar. 31, 2022); NCUA Letter 21-CU-06 (Phase 1 of on-site operations from July 19, 2021, volunteer-only, where public-health data permitted); NCUA's Temporary Regulatory Relief extension (to Dec. 31, 2021); FINRA Rule 3110.17 (calendar-year 2021 remote inspections); EXIM's Board resolution of April 15, 2021 (to April 2022); FINRA Notice 20-08's temporary-office relief (which FINRA never withdrew before Q3 2021 ended, see caveats); and the CFPB's Regulation X interim final rule (in force through the August 31, 2021 servicing rule that FED-B holds). These instruments are relief in form; in substance each one is a governmental authority's direction that a financial-services function operate differently because governmental orders had closed the places where it ordinarily operated. They are pleaded under T2 and T7: the statute asks whether orders limiting commerce, travel or group meetings suspended the operation in part, and an appraisal that could not be performed inside a home, a board that could not meet in person, a shareholder meeting moved online, a lobby closed to the public, an examiner kept off-site and a filing deadline moved because staff could not reach the office are each a portion of the operation changed by governmental action.