[House Hearing, 113 Congress] [From the U.S. Government Publishing Office] WHO'S IN YOUR WALLET: EXAMINING HOW WASHINGTON RED TAPE IMPAIRS ECONOMIC FREEDOM ======================================================================= HEARING BEFORE THE COMMITTEE ON FINANCIAL SERVICES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED THIRTEENTH CONGRESS SECOND SESSION __________ APRIL 8, 2014 __________ Printed for the use of the Committee on Financial Services Serial No. 113-73 ______ U.S. GOVERNMENT PRINTING OFFICE 85-535 PDF WASHINGTON : 2014 ----------------------------------------------------------------------- For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC, Washington, DC 20402-0001 HOUSE COMMITTEE ON FINANCIAL SERVICES JEB HENSARLING, Texas, Chairman GARY G. MILLER, California, Vice MAXINE WATERS, California, Ranking Chairman Member SPENCER BACHUS, Alabama, Chairman CAROLYN B. MALONEY, New York Emeritus NYDIA M. VELAZQUEZ, New York PETER T. KING, New York BRAD SHERMAN, California EDWARD R. ROYCE, California GREGORY W. MEEKS, New York FRANK D. LUCAS, Oklahoma MICHAEL E. CAPUANO, Massachusetts SHELLEY MOORE CAPITO, West Virginia RUBEN HINOJOSA, Texas SCOTT GARRETT, New Jersey WM. LACY CLAY, Missouri RANDY NEUGEBAUER, Texas CAROLYN McCARTHY, New York PATRICK T. McHENRY, North Carolina STEPHEN F. LYNCH, Massachusetts JOHN CAMPBELL, California DAVID SCOTT, Georgia MICHELE BACHMANN, Minnesota AL GREEN, Texas KEVIN McCARTHY, California EMANUEL CLEAVER, Missouri STEVAN PEARCE, New Mexico GWEN MOORE, Wisconsin BILL POSEY, Florida KEITH ELLISON, Minnesota MICHAEL G. FITZPATRICK, ED PERLMUTTER, Colorado Pennsylvania JAMES A. HIMES, Connecticut LYNN A. WESTMORELAND, Georgia GARY C. PETERS, Michigan BLAINE LUETKEMEYER, Missouri JOHN C. CARNEY, Jr., Delaware BILL HUIZENGA, Michigan TERRI A. SEWELL, Alabama SEAN P. DUFFY, Wisconsin BILL FOSTER, Illinois ROBERT HURT, Virginia DANIEL T. KILDEE, Michigan MICHAEL G. GRIMM, New York PATRICK MURPHY, Florida STEVE STIVERS, Ohio JOHN K. DELANEY, Maryland STEPHEN LEE FINCHER, Tennessee KYRSTEN SINEMA, Arizona MARLIN A. STUTZMAN, Indiana JOYCE BEATTY, Ohio MICK MULVANEY, South Carolina DENNY HECK, Washington RANDY HULTGREN, Illinois STEVEN HORSFORD, Nevada DENNIS A. ROSS, Florida ROBERT PITTENGER, North Carolina ANN WAGNER, Missouri ANDY BARR, Kentucky TOM COTTON, Arkansas KEITH J. ROTHFUS, Pennsylvania Shannon McGahn, Staff Director James H. Clinger, Chief Counsel C O N T E N T S ---------- Page Hearing held on: April 8, 2014................................................ 1 Appendix: April 8, 2014................................................ 67 WITNESSES Tuesday, April 8, 2014 Alvarez, Scott G., General Counsel, Board of Governors of the Federal Reserve System......................................... 14 Friend, Amy S., Senior Deputy Comptroller and Chief Counsel, Office of the Comptroller of the Currency (OCC)................ 17 Fuchs, Meredith, General Counsel, Consumer Financial Protection Bureau (CFPB).................................................. 11 McKenna, Michael J., General Counsel, National Credit Union Administration (NCUA).......................................... 16 Osterman, Richard J., Jr., Acting General Counsel, Federal Deposit Insurance Corporation (FDIC)........................... 12 APPENDIX Prepared statements: Maloney, Hon. Carolyn........................................ 68 Alvarez, Scott G............................................. 69 Friend, Amy S................................................ 81 Fuchs, Meredith.............................................. 101 McKenna, Michael J........................................... 107 Osterman, Richard J., Jr..................................... 120 Additional Material Submitted for the Record Hensarling, Hon. Jeb: Written statement of the American Bankers Association........ 135 Written statement of ACA International....................... 150 Written statement of the American Financial Services Association................................................ 178 Written statement of the American Land Title Association..... 184 Written statement of The Clearing House Association L.L.C.... 188 Written statement of the Consumer Bankers Association........ 194 Written statement of the Consumer Bankers Association, the Credit Union National Association, the Electronic Funds Transfer Association, the Electronic Transactions Association, the Independent Community Bankers of America, the National Association of Federal Credit Unions, and the Third Party Payments Processors Association................ 198 Written statement of the Community Financial Services Association of America..................................... 204 Written statement of Community Choice Financial.............. 216 Written statement of the Credit Union National Association... 220 Written statement of the Electronic Transactions Association. 224 Written statement of the Financial Service Centers of America 232 Written statement of the Independent Community Bankers of America.................................................... 271 Written statement of the Mortgage Bankers Association........ 289 Written statement of the National Automobile Dealers Association................................................ 296 Written statement of the National Association of Federal Credit Unions.............................................. 308 Written statement of the National Association of Home Builders................................................... 336 Written statement of the National Association of Retail Collection Attorneys....................................... 344 Written statement of the U.S. Chamber of Commerce............ 348 Ellison, Hon. Keith: ``Treasury Notes Blog: The Importance of Remittances through Legal Channels to Somalia,'' dated December 23, 2011....... 396 Letter from the U.S. Department of the Treasury, dated July 8, 2013.................................................... 398 Horsford, Hon. Steven: GAO Report entitled, ``Financial Regulatory Reform, Financial Crisis Losses and Potential Impacts of the Dodd-Frank Act,'' dated January 2013.................................. 400 Luetkemeyer, Hon. Blaine: Bank Discontinuation Timeline................................ 499 Bank Discontinuation Letters................................. 501 FDIC Financial Institution Letter dated September 27, 2013... 506 Written statement of the Financial Services Roundtable....... 508 Letter to the U.S. Department of Justice, dated August 22, 2013....................................................... 512 Letter from the U.S. Department of Justice, dated January 28, 2014....................................................... 516 Letter to the Federal Reserve and the Comptroller of the Currency, dated March 27, 2014............................. 520 ``United States of America v. Payment Processing Center''.... 524 American Banker article entitled, ``DOJ's `Operation Choke Point': An Attack on Market Economy,'' dated March 21, 2014 549 Sherman, Hon. Brad: Additional information provided for the record by the National Credit Union Administration in response to a question posed by Representative Sherman during the hearing 552 Alvarez, Scott G.: Written responses to questions submitted by Representative Garrett.................................................... 554 Written responses to questions submitted by Representative King....................................................... 560 Written responses to questions submitted by Representative Maloney.................................................... 562 Written responses to questions submitted by Representative Moore...................................................... 565 Friend, Amy S.: Written responses to questions submitted by Representatives King, Murphy, Moore, Sinema, and Garrett................... 568 Fuchs, Meredith: Written responses to questions submitted by Representatives Barr, Ellison, Garrett, Huizenga, Murphy, Pittenger, and Sinema..................................................... 578 McKenna, Michael J.: Written responses to questions submitted by Representatives King, Royce, Pittenger, Mulvaney, Garrett, and Fitzpatrick. 592 Osterman, Richard J., Jr.: Written responses to questions submitted by Representatives Garrett, King, Maloney, Murphy, Moore, and Sinema.......... 612 WHO'S IN YOUR WALLET: EXAMINING HOW WASHINGTON RED TAPE IMPAIRS ECONOMIC FREEDOM ---------- Tuesday, April 8, 2014 U.S. House of Representatives, Committee on Financial Services, Washington, D.C. The committee met, pursuant to notice, at 10:04 a.m., in room 2128, Rayburn House Office Building, Hon. Jeb Hensarling [chairman of the committee] presiding. Members present: Representatives Hensarling, King, Royce, Capito, Garrett, Neugebauer, McHenry, Pearce, Posey, Fitzpatrick, Westmoreland, Luetkemeyer, Huizenga, Duffy, Hurt, Grimm, Stivers, Stutzman, Mulvaney, Hultgren, Ross, Pittenger, Wagner, Barr, Cotton, Rothfus; Waters, Maloney, Sherman, Meeks, Clay, Scott, Green, Ellison, Himes, Peters, Sewell, Foster, Kildee, Murphy, Delaney, Sinema, Beatty, Heck, and Horsford. Chairman Hensarling. The committee will come to order. Without objection, the Chair is authorized to declare a recess of the committee at any time. Before we begin our proceedings, I would like to take a moment and recognize the newest member of the House Financial Services Committee, Congressman Steven Horsford, the freshman Representative from Nevada's newly created 4th District. I was informed that before running for office, Mr. Horsford was the CEO of the Culinary Academy of Las Vegas. So I wish to inform my colleague that it is a longstanding tradition of this committee that the newest member bring culinary delights for the rest of the members' enjoyment. We look forward to what you will bring to our next hearing. We assume you will bring great policy and intellectual offerings as well as your culinary offerings to the committee. Our colleague served in the Nevada legislature from 2004 to 2012, where he became Nevada's youngest and first African- American State Senate Majority Leader. I, on behalf of all of the committee, welcome him to the committee, and I would now like to recognize the ranking member out of order for 1 minute to welcome our new colleague, as well. Ms. Waters. Thank you very much, Mr. Chairman. And of course, you have said much of what I was going to say. However, I am very happy to welcome Mr. Steven Horsford as the newest member of the House Financial Services Committee. Mr. Horsford represents Nevada's newly created 4th Congressional District. And again, I think it is important to note that he is the first African-American to serve in Nevada's Federal delegation. Before his election to Congress, Congressman Horsford served in the Nevada State Senate, where he became Nevada's youngest and first African-American State Senate Majority Leader. He also served as Chair of the Senate Committee on Finance. During his time at the Nevada legislature, Mr. Horsford built a reputation as a bipartisan legislator and a strong advocate for middle-class and working families. Then-Senator Horsford worked on legislation that slowed down the rate of foreclosures in Nevada, increased transparency and due diligence in the foreclosure filing process and helped reform unfair lending practices. He comes to us with demonstrated leadership capabilities, real-world knowledge of today's labor market, and a heart for serving middle-class and working-class families. He will be a valuable addition to this committee and I look forward to working with him. I yield back the balance of my time. Chairman Hensarling. The gentlelady yields back. I am now happy to yield, out of order, 1 minute to the gentleman from Nevada to tell us what he is cooking for lunch. The gentleman is recognized for 1 minute. Mr. Horsford. Thank you, Mr. Chairman, and Ranking Member Waters, for your kind welcome and your introduction. It is my honor to join the Committee on Financial Services and I am proud to represent the people of Nevada's 4th Congressional District. Nevada, as many of you know, was hit particularly hard during our economic downturn, and although we have made great strides in rebounding, and our home values are continuing to increase, we still have a long way to go. Southern Nevada remains the most unstable housing market in the country, and the root of many problems facing Nevada families is that, unfortunately, many of them no longer feel secure in their homes. So I am grateful for the opportunity to serve on this committee and I look forward to working with my colleagues on both sides of the aisle to pass meaningful legislation that addresses some of the hardest-hit communities in our Nation, and while my previous career was in culinary arts and helping train and employ people in careers in the hospitality industry, Mr. Chairman, I was not a culinarian. I cannot cook. So I will have to cater out. But if we can pass some meaningful legislation, I would be happy to make sure that contribution is made. Thank you. I yield back my time. Chairman Hensarling. We will make sure the Member is informed of all relevant ethics rules. The gentleman yields back. Perhaps we can all make him feel welcome. [applause] Chairman Hensarling. Our hearing today is entitled, ``Who's in Your Wallet: Examining How Washington Red Tape Impairs Economic Freedom.'' I now recognize myself for 4 minutes to give an opening statement. Last Friday, the House debated a rather simple, common- sense bill requiring the Congressional Budget Office to produce long-term macroeconomic analysis of proposed legislation. It was strongly opposed by House Democrats. If this bill had been law just a few years ago, Members would not have had to pass Obamacare to find out what is in it. They and the public would have known before the fact instead of after that, according to the Congressional Budget Office, Obamacare will result in 2.5 million fewer jobs. Information like this should not be swept under the rug. Regrettably, something similar happened in this committee just last week. The Oversight and Investigations Subcommittee received testimony from a high-ranking CFPB whistleblower concerning serious allegations of discrimination and retaliation at the Bureau. Her testimony was corroborated by the CFPB's own independent investigator, and both testified as to many other CFPB employees who have lodged these same allegations. What was the response from the Democratic leadership on the committee? They demanded the hearing be cancelled. In other words, the matter would regrettably be swept under the rug, hidden from public view, ignored. Likewise, many Democrats have harshly criticized cost- benefit analysis, looking at the pluses and minuses of the rule, the impact on jobs, asking the question of whether a rule on balance helps or harms hardworking, struggling American families. The ranking member, for example, declared that legislation requiring cost-benefit analysis is dangerous. I believe what is dangerous is sweeping under the rug the mounting evidence that many rules promulgated under Dodd-Frank and its ideological precursor, the CARD Act, are harming consumers. The Federal Reserve now reports that one-third of Black and Hispanic borrowers would be hurt by the qualified mortgage (QM) rule. In the American Bankers Association's most recent lending survey of banks, one-third of respondents said they plan to reduce their mortgage lending only to QM loans. Perhaps that is why QM is rapidly becoming known as the ``quitting mortgages'' rule. The FDIC has reported that it has become more difficult for lower-income Americans to access banking services because checking and savings account fees have gone up. Almost one-half of banks that previously offered free checking no longer do so. In a recent survey of banks regarding CFPB's remittance rule, the ABA reported that 42 percent will now increase fees, and 18 percent plan to stop offering the services altogether. Forty percent of lower-income families have reported that their credit cards have been cancelled, not renewed, or their limits reduced since the passage of the CARD Act. Clearly, the evidence continues to mount and cannot be conveniently swept under the rug. It is time for everyone to take off partisan blinders and acknowledge the truth that Washington regulators aren't always right and more red tape is not always the solution to every problem. It is time to hold Washington accountable. Frequently, I receive letters or correspondence like the following from a banker in Central Texas, who I think sums up the challenges well. He wrote, ``We have provided fair, honest, and competitively priced loans and home mortgages in our market for as long as I have been with the bank. And for the record, we have not had a home foreclosure in over 25 years. ``Currently, our ability to cope with the regulatory burden is at a critical stage. We are spending an unprecedented amount of time and resources trying to understand this process as the various agencies continue to draft new rules and guidance at will. Just a new regulation here and there and now consumer lending has become a compliance nightmare. ``There is no time left to take care of our customers or develop new relationships because all of our team is busy working on compliance issues. The spirit of the law no longer exists as the regulatory environment has changed from a helpful and supervisory approach to the gotcha attitude where only the slightest issue can bring instant criticism to your bank. ``Reluctantly, we are working to downsize our consumer lending program, especially in the small loan area. Also, due to the massive new regulatory focus on mortgage loans, we have suspended our home lending activities as of this month. This is not good news for our community, but we can no longer comply with the massive burden.'' I think the letter speaks for itself. Regrettably, I receive many such letters, thus the subject of our hearing today. I now yield 5 minutes to the ranking member for an opening statement. Ms. Waters. Thank you very much. Mr. Chairman, before I proceed with my remarks I must set the record straight and I must share with this committee that the Democrats did not ask for a cancellation of the hearing. We asked that the hearing be cancelled because, in fact, you had set out to hold the hearing based on a report that was aired in the American Banker. You changed the makeup of that hearing and you went in another direction with one individual. So when the CFPB decided they would not come because you had changed the hearing, we agreed with that, but we made the young lady, the lawyer, Angela Martin, very welcome, and I yielded my time to her so she could tell us more about the discrimination in the CFPB that she was claiming was being perpetrated by White males against African-Americans and others. We welcome that information and we welcome your newfound interest in doing something about discrimination. We think that this is a healthy direction for your side of the aisle and we are looking forward to a hearing that will be organized in regular order to deal with these issues. Furthermore, let me also mention that your concern about African-Americans and others being able to access mortgages under the QM rules, you need to know that one-third of banks have said they are satisfied with what has happened with QM in the way that the Consumer Financial Protection Bureau has helped to work out some of the problems, and one-third of the banks will now be making loans. With that, I will proceed with my statement. Just before Congress is set to leave town for a 2-week congressional recess, here we are again attacking regulators for their efforts to repair the damage caused by the worst financial crisis since the Great Depression. This hearing, in my estimation, is nothing more than the latest chance for the Majority to air its ideologically-driven deregulatory agenda. And it is a continuation of the Republican quest for extreme and unreasonable cost-benefit requirements, which do nothing more than undercut the ability of our regulators to do their jobs. How quickly my colleagues on the other side of the aisle have forgotten the loss of millions of American jobs and trillions of dollars of household wealth caused by inadequate regulation. Mr. Chairman, the simple fact is that the Majority's cost- benefit requirements would impose additional costs on our regulators and expand government bureaucracy. I find it ironic that we are participating in a hearing to examine so-called government red tape while many of my Republican colleagues are pushing measures that would only serve to increase it. It is unfortunate that this committee continues to consider these measures, which are becoming a not- so-veiled effort to roll back the significant accomplishments of the Dodd-Frank Wall Street Reform Act while ignoring a number of important policy matters that need our attention now. We know the crisis was caused by dramatic failures of corporate governance and risk management at large, globally interconnected financial firms. We also know that excessive borrowing, risky investments, and a lack of transparency throughout the financial system put us on the path to crisis. Although Washington had a role to play, it certainly was not because regulators erred on the side of overregulation. Despite their collective failure to see the crisis coming before it was too late, the financial regulatory agencies represented before us today should be commended for their effort that has already put our financial system on more stable footing. Regulators have made important progress by enhancing risk-monitoring and heightening capital standards at the largest and most complex banks and nonbank financial companies. They have also increased cooperation and information- sharing among regulators of banks and nonbank financial companies, and they have enhanced the transparency and protections afforded to consumers and investors. Our regulators have also taken action to ease the regulatory burden for small banks and financial institutions by providing targeted relief. I am looking forward to what the witnesses will say about actions to continue helping these small and community-based entities. As the number of legislative days continue to dwindle, I certainly hope that we can come together on important issues that merit our serious attention. Rather than accusing Washington of restricting economic freedom, we should be taking up bills that grow our economy and create good jobs for U.S. workers. Mr. Chairman, this includes reauthorizing the export-import bank and extending the terrorism risk insurance program. Acting on these important measures now is imperative to ensure businesses have the certainty they need to invest in the economy. They both create and sustain American jobs and have widespread bipartisan support, including a number of Republican members of this committee. These issues desperately need our attention, and while we know they need to be addressed very soon, this committee has thus far simply refused to do so. I thank you, and I yield back the balance of my time. Chairman Hensarling. The gentlelady yields back. The Chair now recognizes the gentlelady from West Virginia, Mrs. Capito, the chairwoman of our Financial Institutions and Consumer Credit Subcommittee, for 2 minutes. Mrs. Capito. Thank you, Mr. Chairman. I would like to thank the witnesses for being here today. The topic for our hearing today is how regulations emanating from Washington are affecting Main Street. This has been a common theme in the Financial Institutions and Consumer Credit Subcommittee over the past year. In past hearings, we have heard significant concerns from community bankers and credit unions about how new regulations are removing a significant amount of discretion from underwriting consumer credit. One of the main issues we focused on are the mortgage rules that the CFPB issued last January, that went into effect this year. These rules will have a tremendous impact on the Nation's mortgage market, and I feel the consumers who are most impacted by them and stand to lose are the low- to moderate-income borrowers. The hearings we have had on these mortgage rules have highlighted the importance of allowing lenders to have a tremendous amount of flexibility in determining a borrower's ability to repay. We have learned about several programs that have allowed low-income borrowers, who otherwise would not be able to realize the dream of home ownership, to purchase their own home. In my home State of West Virginia, I have talked extensively with bankers who work with low-income borrowers to structure tailored products that would help them purchase the home. And in many, lenders have longstanding relationships with the clients that they serve. They use these relationships and their local knowledge to extend credit to borrowers who might otherwise not qualify. Thanks to their efforts, many low-income borrowers in my State now own homes and are working towards greater financial flexibility. Unfortunately, the CFPB rules are bringing many of these programs to an end. Many of the institutions that shared the success of these programs targeted to low- or moderate-income borrowers also shared significant concerns about the one-size-fits-all nature of the CFPB mortgage rules. This could be a huge problem for rural communities like those I represent in West Virginia. I have already heard concerns from bankers and individuals in my State that low-income borrowers simply will not be able to get a mortgage if they do not fit this qualified mortgage criteria. Unfortunately, this Washington-knows-best approach is not limited to the mortgage market. The agencies before this committee have also taken action to limit the availability of consumer choice in other ways. Many of the financial institutions that offer short-term loan products have now exited the business. I yield back to the Chair. Chairman Hensarling. The gentlelady yields back. The Chair now recognizes the gentlelady from New York, Mrs. Maloney, for 2 minutes. Mrs. Maloney. Thank you. I have a great respect for the chairman, but I must take issue with his statement that the CARD Act, the Credit Card Reform Act, hurts consumers. There have been two celebrated independent reports: one from the Pew Foundation that said this bill alone saved consumers a whopping $10 billion a year; and more recently, a report from three major universities, one of which was New York University in my district, which said that this bill saved consumers $20 billion a year. I fail to understand how keeping money in consumers' pockets hurts them. What the bill basically did is that it stopped unfair, deceptive, and anticompetitive practices. The regulators themselves have endorsed it. The Fed came out with a rule that was practically totally similar to it, thereby showing that it did not hurt the industry or the overall economy, and the regulators tell me that the number of complaints on credit cards is now practically nonexistent. The industry itself tells me that the number of complaints that they have to deal with are practically nonexistent. So I would say a bill that helps consumers is certainly not one that hurts them. And with all due respect, you are entitled, certainly, to your own impressions, but not your own facts. And if there is a disagreement on these issues I would really hope that the chairman would have a hearing on it. Let's call in the Pew Foundation and the academics. Many consumer groups have given numerous awards to the bill for what it has done for the overall economy and in helping. It is a relief program, a stimulus program for consumers, keeping their money in their own pockets by stopping unfair and abusive practices. I would call that a success. My time has expired. I ask unanimous consent to put my opening statement that I prepared into the record. Chairman Hensarling. Without objection, it is so ordered. The Chair now recognizes the gentleman from New Jersey, Mr. Garrett, the chairman of our Capital Markets and GSEs Subcommittee, for 1 minute. Mr. Garrett. I thank the chairman for holding this very important and timely hearing today. These oversight hearings with the banking agencies are really much needed, and it is my hope that they will happen more frequently. Having these hearings and requiring the regulators to come here and take and then answer some of the tough questions may be the only way we can ensure that they retain any level of accountability to Congress. Dodd-Frank bestowed almost limitless powers to the banking regulators, and especially to the Fed. Unfortunately, all of these agencies continue to operate with little, if any, accountability. So instead of technocrats simply implementing the directives given them by Congress, these banking agencies now operate as policymakers on steroids, carrying out their own regulatory ambitions and even blatantly, in many cases, clearly defying congressional directives. Mr. Chairman, I believe this is totally unacceptable. And given this lack of accountability to this Congress, I believe this Congress should seriously examine the appropriateness of merging and reforming some of these agencies to ensure a greater level of accountability to the American public and to this Congress. I yield back. Chairman Hensarling. The Chair now recognizes the gentleman from California, Mr. Sherman, for 2 minutes. Mr. Sherman. I want to associate myself with the gentlelady from New York and her comments on the CARD Act. Mr. Chairman, you will find the rest of my opening statement to be bipartisan and depressing at the same time. Perhaps coincident with my arrival here in Congress, Congress has descended into a dysfunction so severe that even when we think we are affecting public policy and passing landmark legislation, the legislation does little more than add additional power to the Executive Branch agencies. Our most obvious method of affecting public policy is to pass legislation through this committee, which far more often than not is simply ignored by the other body, or passing legislation that does little more than extend existing programs without change. But I think perhaps our most important method of affecting public policy is by lobbying and beseeching the Executive Branch agencies and urging them to use their enhanced authority with wisdom. So I ask our witnesses to listen carefully to the advice you are about to hear, even if that advice is disguised in the form of a question. Listen carefully. Perhaps our advice will contain a shred of wisdom. And in any case, our ability to influence your decisions is perhaps the largest remaining shred of the once preeminent Article 1 of the United States Constitution. I yield back. Chairman Hensarling. The gentleman yields back. The Chair now recognizes gentleman from Georgia, Mr. Westmoreland, for 1 minute. Mr. Westmoreland. Thank you, Mr. Chairman, and I appreciate you having this hearing. First of all, let me just recognize all the panelists and thank you all for being here. I have read your bios and I have noticed that you are all attorneys, it seems like you are all bureaucrats, and none of you are bankers. And in fact, from reading your bios, I would say that none of you have sat across the table from anybody wishing to borrow money. And I don't understand exactly how that works that you can, in your professional opinion, understand what makes a good loan and what makes a bad loan, what makes somebody more at risk than somebody else that is not at risk, what makes somebody's company better than somebody else's company? And if you look at all the different things, the rules and regulations that you have put in place, you are not accountable to anybody. And so I hope, Mr. Chairman, that this committee will look at trying to put these agencies under the Appropriations Committee and the appropriations process so we can at least have some say-so over exactly what rules and regs they make. I yield back. Chairman Hensarling. The Chair now recognizes the gentleman from Missouri, Mr. Luetkemeyer, for 1 minute. Mr. Luetkemeyer. Thank you, Mr. Chairman. I am incredibly concerned about the complete abuse of power by the regulators as they have been forcing legally operating, fully licensed financial companies out of business. Regulators have admitted this is happening, and even have a name for this coordinated effort. It is called ``Operation Choke Point.'' Regulators have admitted this is happening and do nothing about it. There is no denying it. I want to read an e-mail sent by a banker to a longstanding client in the nondepository lending space. ``Based on your performance, there is no way we shouldn't be a credit provider. Our only issue is and has always been the space in which you operate. It has never been the service that you provided or the way you operate. You have obviously done a brilliant job. It is the scrutiny that you, and now we, are under.'' What we are seeing through Operation Choke Point and from these other regulators, as well as DOJ, should be a wakeup call to the entire Nation. I hope our witnesses can provide this committee with an explanation for the blanket targeting of an entire financial services sector. I yield back. Chairman Hensarling. The Chair now recognizes the gentleman from Wisconsin, Mr. Duffy, for 1 minute. Mr. Duffy. Thank you, Mr. Chairman. Congress enacted the Federal Advisory Committee Act in 1972, over 40 years ago, and it was to ensure that Congress and the public understood what was going on in these meetings, what was being discussed, the cost to taxpayers, to provide basic transparency. Only the CIA and the Federal Reserve, for the purposes of the Open Market Committee, were exempt. What I would like to hear is what the CFPB is doing in these meetings that is on par with the CIA, and why these meetings aren't open to Congress and to the public. On February 26th and 27th, I made a request to the CFPB to attend a Consumer Advisory Committee meeting. My staff was sent an e- mail that they--the CFPB--could not accommodate the Congressman's request, meaning I couldn't attend. These meetings should be open. They should be transparent. The public and Congress should know what is going on and I would like to hear more testimony on this topic. I yield back. Chairman Hensarling. The Chair now recognizes the gentlelady from Ohio, Mrs. Beatty, for 1 minute. Mrs. Beatty. Thank you, Mr. Chairman, Ranking Member Waters, and witnesses. Today's hearing has a tricky title, but I think it is misplaced. Instead of having a one-panel hearing with only General Counsels from the financial regulators here to testify, we could expand the testimony to include the various private sector participants whose business models have in the past put them in the wallets of the American public. Market manipulation and predatory lending practices do not grow the size of the economic pie; they simply shift the pie from the victims to the takers. But today we are in a new day. No longer can credit card companies take advantage of consumers by charging fees for services that have no value or were never received. Access to capital and credit from deep and liquid markets are the hallmarks of the American financial system, all of which were jeopardized during the financial crisis. Economic freedom, unlike these one-sided hearings, is about both the freedom we choose for what is best for our family's finances, and the freedom to do so without being subject to unlawful and unfair financial practices. Thank you. Chairman Hensarling. We now welcome our witnesses. Ms. Meredith Fuchs is the General Counsel of the CFPB. Ms. Fuchs joined the Bureau in 2011, where she has also served as Principal Deputy General Counsel and as Chief of Staff to Director Cordray. She previously served as a staffer on the House Energy and Commerce Committee, and in a variety of legal positions in the private sector. She earned her law degree at NYU. Mr. Richard Osterman is the Acting General Counsel of the FDIC. Before joining the FDIC, Mr. Osterman represented the Federal Home Loan Bank Board on regulatory matters, and supervised complex commercial litigation. He holds a law degree from the University of Baltimore School of Law. Mr. Scott Alvarez is the General Counsel of the Board of Governors of the Federal Reserve System, a position he has held for almost a decade. His tenure at the Fed started in 1989, when he joined as Assistant General Counsel. He earned his law degree from Georgetown. Mr. Michael McKenna is the General Counsel of the National Credit Union Administration, where he has served since 1989. In that role, Mr. McKenna serves as the primary legal advisor to the NCUA board, and supervises the provision of legal advice throughout the agency. Prior to joining NCUA, Mr. McKenna served as Staff Judge Advocate for the U.S. Army at Fort Hood. He holds a law degree from American University. Last but not least, Ms. Amy Friend is the Senior Deputy Comptroller and Chief Counsel of the OCC. Ms. Friend oversees all of the agency's legal activities, including legal advisory services to banks and examiners in enforcement and compliance activities, litigation, and legislative activities. Prior to her service at OCC, Ms. Friend spent time in the private sector, and also served as a House staffer on this committee, so we welcome her back. She holds a law degree from Georgetown University. Without objection, each of your written statements will be made a part of the record. I believe each of you is familiar with our green, yellow, and red lighting system at the witness table. I would remind you, when it is your turn, to actually turn your microphone on and pull it very close to you so that all may hear your testimony. I respectfully ask that each of you observe the 5-minute time allocation. Ms. Fuchs, you are now recognized for 5 minutes. STATEMENT OF MEREDITH FUCHS, GENERAL COUNSEL, CONSUMER FINANCIAL PROTECTION BUREAU (CFPB) Ms. Fuchs. Thank you. Chairman Hensarling, Ranking Member Waters, and members of the committee, thank you for the invitation to testify today on the impact of regulation on financial markets and on consumers. My name is Meredith Fuchs and it is my privilege to serve as the General Counsel of the Consumer Financial Protection Bureau. As you know, the Bureau was created as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act in response to the recent financial crisis. The crisis resulted in part from failures of a Federal regulatory system, including the fragmented responsibility for consumer financial protection. To address this problem, Congress created the Bureau. We are hard at work fulfilling the objectives that Congress set out for us, including ensuring that consumers have better information to make financial decisions, reducing unwarranted regulatory burdens, leveling the playing field for different kinds of entities offering the same kinds of products and services, and promoting transparent and efficient markets. As the Dodd-Frank Act requires, the Bureau has issued regulations to strengthen the mortgage markets, to make Federal mortgage disclosures easier for consumers to understand and less burdensome for firms to make, and to establish standards for mortgage servicing. We also have issued rules to allow us to examine a range of larger nonbank participants in the consumer finance markets. As we do this work, we employ a number of strategies to ensure that our rules are effective at protecting consumers and making consumer financial markets work. First, we consider the input of stakeholders. For example, our Office of Financial Institutions and Business Liaison connects the Bureau with bank and nonbank trade associations, financial institutions, and businesses to enhance collaboration and communication. In addition, the Bureau is the only banking regulator, and one of only three Federal agencies that the Small Business Regulatory Enforcement Fairness Act requires to convene small- business review panels. Pursuant to the Act, before we propose a rule that would have significant economic impact on a substantial number of entities, we seek input directly from small entities on the potential cost and potentially less burdensome alternatives. A second strategy that we use when considering regulation is, as required by the Dodd-Frank Act, to consciously consider potential benefits and costs and impacts of our rules to consumers and to financial service providers. Where proposed regulation would have a significant economic impact on a substantial number of small entities, our analyses under the Regulatory Flexibility Act consider the compliance burdens of the proposal, as compared to less burdensome alternatives. Moreover, where a proposed rule would impose disclosure, record-keeping, or information-collection requirements, the Bureau also considers the potential burden, and ways to minimize that burden, pursuant to the Paperwork Reduction Act. Third, we act deliberately to reduce existing regulatory burdens. For example, as part of the Bureau's project to streamline the regulations that the agency inherited from seven different Federal agencies, we are working on a proposal that, if adopted, would reduce the requirements and the burden of providing annual privacy notices in certain circumstances. Other examples are in my written testimony. Currently, we are developing a comprehensive plan to assess the effectiveness of the significant rules that we have adopted under Federal consumer financial law within 5 years of their issuance, as Section 1022 of the Dodd-Frank Act requires. Fourth, we are working to make it easier to comply with our regulations. To that end, we have implemented a comprehensive regulatory implementation program to help industry. For example, after we issued our new mortgage rules last January, we published plain-language compliance guides for small businesses and we published video presentations to give an overview of the rules, as well as a readiness guide and other implementation materials. In close coordination with the other regulators, we developed and issued exam procedures as early as practicable. In addition, we provide oral guidance to industry participants who contact us. And where warranted, we have responded to stakeholder concerns by proposing and issuing amendments and clarifications to facilitate compliance with our rules and better protect consumers. There are examples in my written testimony. Of course, despite our best efforts, not everyone complies with the law all the time, which brings me to our fifth strategy: holding parties who violate the law accountable through an effective supervision and enforcement program. Together, our supervision and enforcement programs have returned hundreds of millions of dollars to injured consumers, have halted violations of the law, and have led companies to strengthen their compliance systems. Sixth and finally, the Bureau supports innovation in the marketplace through our Project Catalyst program and our Trial Disclosure program, under which companies can provide innovative disclosures or ways of delivering disclosures that are not currently permissible under existing regulations. Thank you for the opportunity to discuss the Bureau's work with the committee. [The prepared statement of Ms. Fuchs can be found on page 101 of the appendix.] Chairman Hensarling. Mr. Osterman, you are now recognized for 5 minutes. STATEMENT OF RICHARD J. OSTERMAN, JR., ACTING GENERAL COUNSEL, FEDERAL DEPOSIT INSURANCE CORPORATION (FDIC) Mr. Osterman. Good morning, Chairman Hensarling, Ranking Member Waters, and members of the committee. I appreciate the opportunity to testify today on recent regulatory activity of the Federal Deposit Insurance Corporation. Despite continuing challenges for the banking industry, our regulatory activity is taking place in a gradually improving environment for banks of all sizes. Annual earnings in the industry have increased for the past 4 years; balance sheets have also improved. As the industry has recovered, the Deposit Insurance Fund (DIF) has moved into a stronger financial position, from negative $20.9 billion at the end of 2009, to $47.2 billion at the end of 2013. And we remain on track to reach our statutorily required reserve ratio by 2020. The number of problem banks has shrunk from a high of 888 in March of 2011 to 467 as of December 2013. The number of bank failures also has been declining steadily. In 2013, there were only 24 bank failures, compared to the peak of 157 in 2010. As the condition of the banking industry has improved, the total number of FDIC enforcement actions, both formal and informal, has decreased. Last year, enforcement actions decreased by 27 percent, and for the first time since 2008, the total number of enforcement actions terminated outpaced the number initiated. With the industry recovering, the FDIC continues to work on regulatory improvements designed to address the causes of the financial crisis. Last year, the FDIC joined with the Federal Reserve and the OCC in issuing rules that significantly revise and strengthen risk-based capital regulations through implementation of the Basel III international accord. The agencies are currently finalizing an enhanced supplementary leverage ratio regulation that will significantly revise and strengthen the leverage capital requirements for the eight largest bank holding companies and their insured banks. The FDIC Board has scheduled a vote on a final rule later today. These higher capital requirements will help offset systemic risk and provide an additional private capital buffer before the DIF is put at risk. In response to the significant liquidity problems experienced during the crisis, in October 2013 the banking agencies issued an NPR to implement a quantitative liquidity requirement consistent with the liquidity standards developed by the Basel Committee. The agencies are in the process of reviewing more than 100 comments received. The FDIC and five other agencies also issued a second notice of proposed rulemaking to implement Section 941 of Dodd- Frank, which requires the sponsor of any asset-backed security to retain an economic interest equal to at least 5 percent of the aggregate credit risk of the collateral. Before issuing the final rule, the agencies will give full consideration to all issues raised by stakeholders in their meetings with agency staff as well as 200 comment letters. Also, the FDIC and the Federal Reserve are currently reviewing the revised resolution plans required under Title I of Dodd- Frank Act for the largest, most systemically significant financial institutions under standards established under the statute. When proposing a new rule, the FDIC considers the least costly options for achieving the public purpose of the rule. The FDIC provides the public with a notice of proposed rulemaking, an opportunity to submit comments, including comments on potential effects on financial institutions and consumers. The FDIC then carefully considers all comments submitted, weighs the impact of the proposed rule, and frequently makes changes in the final rule to address issues raised during the comment period. The regulatory approach followed by the FDIC is intended to implement the statutes enacted by Congress. Rather than prohibiting financial products or services, the FDIC seeks to ensure that they are offered to consumers consistent with safe and sound banking practices. As the primary Federal regulator for the majority of smaller institutions, the FDIC is keenly aware of the challenges facing community banks. In the rulemaking process, particular attention is focused on the impact that a regulation might have on small institutions and whether there are targeted alternatives that would minimize any burden. In both the final Volcker Rule and the Basel rulemaking, the banking agencies made several changes to the final regulations to address issues raised by community banks. To address community bank concerns about the examination process, the FDIC has implemented a number of improvements to our procedures, particularly the pre-exam process, to help make examinations less intrusive and more efficient. We are providing technical assistance to help institutions with their compliance. Mr. Chairman, this concludes my remarks. I would be glad to respond to your questions. Thank you. [The prepared statement of Mr. Osterman can be found on page 120 of the appendix.] Chairman Hensarling. Mr. Alvarez, you are now recognized for 5 minutes. STATEMENT OF SCOTT G. ALVAREZ, GENERAL COUNSEL, BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM Mr. Alvarez. Thank you, Chairman Hensarling, Ranking Member Waters, and members of the committee. I appreciate the opportunity to testify on recent rulemakings and other actions by the Federal Reserve. The Federal Reserve is committed to strengthening the safety and soundness of the financial institutions it supervises so that these companies have the ability to meet their financial obligations and continue to make a broad variety of financial products and services available to households and businesses even in times of economic difficulty. The Federal Reserve has made significant progress in implementing the Dodd-Frank Act reforms designed to improve the resiliency of financial firms and the system as a whole. At the same time, we recognize that regulatory compliance can impose a disproportionate burden on community banking organizations. Community banking organizations tend to lend in neighborhoods where the institution's depositors live and work, making them important sources of credit in their local communities. The Federal Reserve has strived and will continue to strive to ensure that its regulations and supervisory framework are not unnecessarily burdensome for community banking organizations so they can continue to perform their important functions in a safe and sound manner in local communities. To achieve the goal of strengthening the quality and quantity of bank capital without imposing unnecessary burden, the Federal Reserve, in several recent rulemakings, made changes to address concerns raised by public commenters, designed, in particular, to reduce burden on community banking organizations. Many of the Basel III requirements will not apply to smaller banking organizations. The Federal Reserve and the other banking regulators also issued a community bank guide to the new capital rules to help noncomplex banking organizations understand the applicability of the new rules to their operations. Similarly, last month the Federal Reserve published the results of its annual stress test, which demonstrated that the largest banking institutions in the United States are collectively much better positioned to continue to lend to households and businesses and to meet their financial commitments in a severe economic downturn than they were 5 years ago. Overall, this exercise has resulted in the 18 largest banking firms increasing their tier one common equity by more than $500 billion since 2008. That means that the strongest form of loss-absorbing capital at the largest banking firms has more than doubled since the financial crisis. Since enactment of the Dodd-Frank Act, the Federal Reserve has also completed a number of supervisory rulemakings, including adopting final rules that establish enhanced prudential standards for large banking organizations and rules that require large banking organizations annually to file plans to facilitate their resolution in bankruptcy. Today, the Board will deliberate on whether to finalize a rulemaking regarding a proposed supplementary leverage ratio for large banking organizations. None of these rules apply to community banking organizations. To become informed about the benefits and costs of a regulatory proposal, the Federal Reserve often collects information directly from those that we expect would be affected prior to designing the proposal. We also specifically seek comment on the costs and benefits of our proposed approach, invite comment on alternative approaches, and provide the public a minimum of 60 days to comment on all significant rulemaking proposals. In adopting a final rule, we seek to adopt the approach that faithfully reflects the underlying statutory provisions while minimizing regulatory burden. We typically follow this same process of seeking and learning from public comment when issuing supervisory guidance even though we are not required to follow that process under the Administrative Procedures Act. The Federal Reserve has made significant progress in implementing the Dodd-Frank Act and other measures designed to improve the resiliency of banking organizations and the financial system. I thank you for the opportunity to be here, and I will do my best to answer your questions. [The prepared statement of Mr. Alvarez can be found on page 69 of the appendix.] Chairman Hensarling. Mr. McKenna, you are now recognized for 5 minutes. STATEMENT OF MICHAEL J. MCKENNA, GENERAL COUNSEL, NATIONAL CREDIT UNION ADMINISTRATION (NCUA) Mr. McKenna. Thank you, Chairman Hensarling, Ranking Member Waters, and members of the committee. The National Credit Union Administration appreciates the invitation to testify about the agency's recent regulatory and supervisory activities. As a starting point, I want to emphasize that NCUA understands the need to strike a proper balance between implementing the safety and soundness considerations required by the Federal Credit Union Act and minimizing the bottom-line impact for the credit unions we regulate and insure. NCUA has a tailored program designed to mitigate compliance costs and improve the examination process for all credit unions. Rather than adopting one-size-fits-all regulations, NCUA also targets agency's rules to risks and asset size. NCUA strives to ensure that the agency's rulemakings are reasonable and cost-effective. The benefits associated with NCUA's rules primarily derive from addressing and mitigating safety and soundness risks in order to reduce the likelihood of credit union failures. By mitigating failures, NCUA protects the National Credit Union Share Insurance Fund, and in doing so, limits the financial burdens placed on the surviving credit unions that would bear the cost of failure. In looking at compliance issues, many of the complaints raised by credit unions stem from laws like the Bank Secrecy Act or other requirements of other regulators. In such cases, NCUA has no ability to provide regulatory relief. That said, NCUA does work to reduce regulatory burdens where possible for the rules it issues. However, as we learned from the recent financial crisis, sometimes the cost of regulatory inaction can be greater than the cost of action. Since 1987, NCUA has followed a deliberate process to continually review the agency's rules on a rolling basis. This unique policy requires NCUA to review all of its rules every 3 years. It also ensures that NCUA's rules are up to date and reflect current realities. Recognizing the changing financial services environment, NCUA Board Chairman Debbie Matz announced the agency's Regulatory Modernization Initiative in 2011. Under this initiative, NCUA is working to streamline and update the agency's regulatory framework. Additionally, NCUA is developing targeted standards that address high-risk activities. Through this initiative, the NCUA board has approved four targeted rules to mitigate risk and six rules to cut regulatory burdens. One rule that I want to highlight is NCUA's final rule on the definition of a small credit union. At the start of 2013, the NCUA board raised the threshold for a small credit union from $10 million to $50 million in assets and under. As a result of this change, two-thirds of federally-insured credit unions are exempted from regulatory requirements not suitable for small, noncomplex credit unions. Additionally, 2,270 credit unions became eligible for assistance from NCUA's Office of Small Credit Union Initiatives, including access to free training sessions and consulting services. NCUA is affirmatively reducing the regulatory burden of two-thirds of the institutions we regulate and is proactively providing them assistance to help them grow and prosper. NCUA initiates rulemaking as a result of five factors. NCUA issues safety and soundness rules to address the lessons learned during the financial crisis or mitigate growing potential risks. NCUA also acts on rules when required by Congress, as was the case with the Dodd-Frank Act. Additionally, the agency adopts rules in response to recommendations of the U.S. Government Accountability Office and NCUA's Inspector General, such as the proposed risk-based capital rule released earlier this year. Often, NCUA issues rules to cut regulatory burdens or increase powers. Finally, NCUA modifies rules to address technical issues and provide greater clarity. Since the start of 2013, the NCUA board has approved 17 final rules. Of these, one was required by the Dodd-Frank Act, five provided regulatory relief, four addressed safety and soundness matters, and the remaining seven rules were technical in nature. In other words, 70 percent of NCUA's recent final rules have provided regulatory relief or greater clarity without imposing new compliance costs. In closing, NCUA remains committed to continuing its rolling 3-year review of the agency's rules and finishing the Regulatory Modernization Initiative. We are also committed to working with Congress and other stakeholders to explore additional ways to address remaining concerns about NCUA's rules and the examination process. I look forward to your questions. [The prepared statement of Mr. McKenna can be found on page 107 of the appendix.] Chairman Hensarling. And Ms. Friend, you are now recognized for 5 minutes. STATEMENT OF AMY S. FRIEND, SENIOR DEPUTY COMPTROLLER AND CHIEF COUNSEL, OFFICE OF THE COMPTROLLER OF THE CURRENCY (OCC) Ms. Friend. Thank you, Mr. Chairman. Chairman Hensarling, Ranking Member Waters, and members of the committee, thank you for the opportunity to appear before you today to discuss our bank supervision, enforcement, and regulatory program. The OCC supervises more than 1,700 national banks and Federal savings associations ranging in size from community banks with less than $100 million in assets, to large, complex financial institutions with more than a trillion dollars in assets. Since the financial crisis, the banks we supervise have made great strides in repairing their balance sheets through stronger capital, improved liquidity, and the timely recognition and resolution of problem loans. We have a robust process for developing regulations and guidance that serve our safety and soundness mission and also seeks to minimize the compliance burdens on supervised institutions, particularly community national banks and Federal savings associations. We believe it is important to tailor all rules and guidance to the size of the institution and the complexity of its activities whenever possible. Community banks have different business models and more limited resources than larger banks. Therefore, we consider those differences as we write rules and guidance. For example, in a number of recent rulemakings, such as our lending limits rule and the interagency Volcker Rulemaking, we streamlined compliance requirements for community institutions. We now also specifically highlight the key aspects of each new rule or piece of guidance that applies to community banks and thrifts. This highlight, in the form of a text box in the bulletin that accompanies each new issuance, notifies community institutions whether they even need to read the issuance. And in the case of more complex rulemakings, we have provided summary materials. For the new domestic capital rule, for example, we provided a concise two-page summary that gave community banks and thrifts the information they needed in a manageable form. Since the financial crisis, along with strengthening the overall national banking and Federal thrift system, our priority has been to minimize burden to community banks so they can devote more of their time to serving their customers. We take seriously the effect of our issuances on the public and private sectors of the economy. Towards this end, the OCC assesses the economic impact of our proposed and final rules. When our analysis indicates that a rule will have an economically significant impact, we also prepare a more detailed economic assessment. That assessment includes a comparison to a baseline and consideration of one or more alternative approaches. In addition to these analyses, the OCC and other Federal banking agencies are currently engaged in a wide-scale review to identify outdated or otherwise unnecessary regulations. The Economic Growth and Regulatory Paperwork Reduction Act requires this review every 10 years. As Chair of the legal advisory group of the Federal Financial Institutions Examination Council (FFIEC), I have been tasked with coordinating this joint regulatory review. The review provides the FFIEC, the agencies, and the public with an opportunity to identify and target regulatory changes to reduce burden on community institutions. We expect to publish the first Economic Growth and Regulatory Paperwork Reduction Act (EGRPRA) notice in the very near future, and we will specifically ask the public to consider this issue. While we are mindful of the challenges facing banks today, we also recognize that businesses and consumers need access to credit through a variety of products. Although the OCC does not determine the specific types or terms of consumer products or services that banks offer, we expect the institutions we supervise to carefully evaluate the risks their products may pose both to the banks and to their customers. From time to time, we have identified products that present substantial safety and soundness or consumer protection issues and we have issued guidance to address those concerns. On the other hand, we have seen a variety of properly structured products that provide consumers a safe and affordable means of meeting their financial objectives, and we support innovation by the industry to develop and make those products available. Thank you again for the opportunity to appear, and I will be happy to answer your questions. [The prepared statement of Ms. Friend can be found on page 81 of the appendix.] Chairman Hensarling. Thank you. The Chair now recognizes himself for 5 minutes. Ms. Fuchs, approximately a year ago the CFPB issued its enforcement bulletin entitled, ``Indirect Auto Lending and Compliance with the Equal Credit Opportunity Act.'' I assume you are well familiar with that bulletin? In the intervening year, I am aware of at least seven different letters that have gone to Director Cordray that I somewhat assume ended up on your desk, signed by almost 100 Members of Congress, both Senators and Congressmen, both Republicans and Democrats, all seeking the same information, and that is CFPB's methodology in identifying different groups of consumers, the factors it is holding constant to ensure its findings of pricing differentials are attributable to the consumer's background, and the numerical threshold with which the Bureau determines so-called disparate impact. In the intervening year, notwithstanding Director Cordray's public pronouncements that the CFPB would be transparent, we have yet to receive this information. Clearly, you are using some standard, since there was an enforcement action with respect to Allied Bank, so when does the CFPB intend on making this information public in explaining its methodology in regression analysis? Ms. Fuchs. Mr. Chairman, thank you for your question. The CFPB has been engaged in a regular dialogue with committee staff about this information, and I know that about 2 weeks ago committee staff did meet with CFPB employees, CFPB staff, and go through the work that we had done with respect to the Allied matter, including-- Chairman Hensarling. But Ms. Fuchs, with respect to those who have to live under the standard, doesn't this standard not only have to be--doesn't this need to be made public? Ms. Fuchs. The CFPB has talked about the methodology that it is using in connection with these auto investigations. We are also engaged-- Chairman Hensarling. Have you specifically answered, though, the questions that have been posed by the Members of Congress? Ms. Fuchs. To some extent, in these matters, the methodology will vary depending on the business model of each individual institution that we are engaged in either supervision or investigation of. And so there is not a one- size-fits-all process-- Chairman Hensarling. Then, how is an indirect lender supposed to comply if all of this comes down to individual cases? Why isn't it to be observed that you are engaged in a de facto rulemaking without actually following the rulemaking process? So, if there is something--if there is some standard by which these people are being held, why is there a rulemaking to amend Reg B? Ms. Fuchs. The CFPB, when it is looking at indirect auto lending, is looking at it in much the same way as other regulators have looked at it. We do look at whether there are disparities that require any action, and then in the course of that--if we are in the middle of an investigation or an exam, we-- Chairman Hensarling. So is there a methodology? Is there a numerical threshold? How is a bank supposed to comply? Ms. Fuchs. As I mentioned, it varies somewhat from matter to matter because of the business model of each individual lender that we may be looking at. However, we have been engaged in a constant discussion with your staff about this, and we walked your staff through our methodology a week or so ago so they would have an opportunity to ask questions and review how we approached-- Chairman Hensarling. I have to tell you, Ms. Fuchs, and I know that you are not personally responsible here, but for an agency that is supposed to be policing abusive practices, to essentially engage in de facto rulemaking without engaging in de jure rulemaking, strikes me as an abusive practice, and I would hope that the agency would go back and reflect upon their actions, and answer the questions of Members of Congress on both sides of the Capitol, on both sides of the aisle. Now, in the time I have remaining, Ms. Fuchs, I guess you are also quite aware of the purpose of our hearing last week dealing with an American Banker article that revealed disparities in the ratings employees have received in the Bureau's annual employee review process. Can I assume that you are familiar with the American Banker article? Ms. Fuchs. Yes, sir. Chairman Hensarling. Does the CFPB take issue with the data that was presented in the American Banker article? Do you refute the statistics? Ms. Fuchs. Mr. Chairman, I see the time has expired. May I respond? Chairman Hensarling. You may respond. Ms. Fuchs. The CFPB takes the data that was reported in the American Banker article very seriously. The CFPB itself has been evaluating its performance management system, and thus collected the data that was provided to the American Banker. When we saw that there were concerns, we addressed this proactively with the National Treasury Employees Union, which is the labor union that represents the single bargaining unit at the CFPB, because we are in a process of negotiating our first collective bargaining agreement. And as you can imagine, performance management is an issue of great concern to that collective bargaining agreement. So we are affirmatively trying to address the disparities that were talked about in the-- Chairman Hensarling. Ms. Fuchs, I am now well over my time. I just would say you certainly create the impression that you are trying to impose a standard upon others that you are incapable of living under yourself. The ranking member is recognized for 5 minutes. Ms. Waters. Thank you very much, Mr. Chairman. Although the Dodd-Frank Act included an extensive number of provisions designed to reduce regulatory burdens for community banks and credit unions, I have continued to hear from a number of institutions over the past year that additional relief is needed. In fact, over the past year, Members on our side of the aisle have worked hard to solicit the concerns and understand the unique challenges faced by smaller financial institutions in order to see whether there was a way for the Congress and the regulators to provide some relief. Despite our best efforts to come up with legislation that would create relief in a responsible manner, these efforts would appear to have fallen on deaf ears here in the Financial Services Committee. Given this, I would like to know, what about the specific concerns you are hearing from the small institutions you regulate? How do you incorporate the unique concerns of community banks and financial institutions into your rulemaking? What types of resources are available to small institutions to ensure they are informed of their legal obligations as part of any rules that your agencies promulgate? Since you have already started, Ms. Fuchs, let's start with Mr. Osterman. Mr. Osterman. Thank you for your question. At the FDIC, we look at the impact of potential regulations and rules on community banks. First off, in terms of the examination process, while with the larger institutions there is continuous examination, with the smaller institutions, the time between examinations can run from 12 months to 18 months. And we actually did a community banking study last year, and in that we determined that the community banking model continues to be a very viable and important one in terms of making loans to communities. What we have done, as we mentioned in our opening remarks on the Basel rulemaking, is we actually exempted community banks from certain provisions. That also happened in Volcker. And in connection with financial institution letters, we actually put on the top of those whether they apply to institutions of a billion dollars or less so that community banks can easily find that information and avoid dealing with tons of paper. We also have created Webinars for community bankers to provide them technical assistance. So, there are many things that we have done and we are open to continuing to try to support the community banking model. Ms. Waters. Mr. Alvarez? Mr. Alvarez. Yes, Congresswoman Waters. We do many of the same things that the FDIC and the OCC do in outreach to the community banks to make sure that we understand their concerns and we take them into account in our rulemaking processes. We also prepare small bank compliance guides with our major rulemakings to provide simple guidance about how to comply with the rules. We also have formed 12 community depository institution councils, one in each of our reserve bank districts. We consult with these councils about the rules that we put forward and the regulatory burden associated with our supervision. One representative from each of those 12 councils sits on a national council that meets with our Board of Governors on a regular basis to, again, raise issues about supervision of small institutions. So we try our best to, wherever possible under the statute, give room to small institutions. Ms. Waters. Mr. McKenna? Mr. McKenna. Thank you, Congresswoman Waters. Our small credit union office assists credit unions with assets less than $50 million, and we have a rulemaking program that we always look for credit unions under $50 million to see if they can be exempt for our rulemaking or have less burdensome rules. In fact, when we did a final rule on emergency liquidity and interest rate risk policy, on those two rules, the standards and requirements for small credit unions were less. We have a proposed risk-based capital rule, and credit unions under $50 million would not be subject to that. So we are always looking to target our rules and to try to exempt small credit unions when we can. Ms. Waters. Ms. Friend? Ms. Friend. Congresswoman, in addition to the capital rules and the Volcker Rules that my colleagues talked about, the OCC recently issued a lending limits rule under the Dodd-Frank Act that sought to take into account derivatives exposures, and they are in response to comments and meetings that we had with community banks. We gave them an easy lookup table, the methodology that was much more tailored to them, as well as exempting a number of transactions that they are usually involved in. So we also go the extra mile to try to accommodate the concerns we hear from community banks through our regulations and our issuances. Ms. Waters. Thank you all so very much. You are doing a great job. Chairman Hensarling. The Chair now recognizes the gentleman from Texas, Mr. Neugebauer, chairman of our Housing and Insurance Subcommittee, for 5 minutes. Mr. Neugebauer. Thank you, Mr. Chairman, and thank you for having this important hearing. Ms. Fuchs, I am going to go back to some questioning that the chairman--and I want to go from a little bit different angle. Obviously, we are all very concerned about the lack of transparency, the lack of responsiveness to the agency on this issue of the car dealers that are brought up about this compliance issue, but here is what we need to think about that: I don't think you want to be responsible for keeping that single mom with two kids who is working two jobs from being able to get a car loan so that she can get to and from work and to take her kids to school. You don't want to be responsible for that, do you? Ms. Fuchs. No, sir. Mr. Neugebauer. But you see, that is what is going on right now is that the uncertainty that your agency is creating--I have had an opportunity to sit down with a number of car dealers, and basically the way that works is that people come in their dealerships needing transportation, but what is going to happen right now, with the fact that people don't really know what the clear lines are, is that people who need a car, need transportation, may not go away with it because maybe she is just--that single mom is just recently divorced and she has a little bit of a blemish on her credit report. And so they need to put her--may possibly recommend that she go with a different financing option that lots of dealers, quite honestly, tell me that they are very concerned about steering people to where they can complete the transaction. And so what is going to happen is that only the people with really good credit and who are within the lines, whether it be a car or a mortgage or any other type of financial transaction, we are beginning to take away the choices that consumers have. And if that is the kind of consumer protection that you are providing to consumers, I think they don't want any more of it. So I just--I think that you all need to come clean on how you are determining this so everybody knows what the lines look like, because the fact that the lines aren't clear right now is, I think, damaging and creating an inability for some people to access some of our capital markets and get much-needed credit. I want to go to Mr. Alvarez. The Financial Stability Board (FSB) recently issued mandates to the International Association of Insurance Supervisors (IAIS) to develop global capital standards for insurers, something not supported by our own State regulators. What objective evidence was relied on to support this mandate, and what cost-benefit analysis was done by you or the FSB or any of the other people supporting this mandate? Mr. Alvarez. Congressman, as you pointed out, this is something being done by the FSB, which is not the Federal Reserve. Mr. Neugebauer. I understand. Mr. Alvarez. And we were only recently granted a seat on the IAIS, which is the international insurance review body. So we have not begun--we are now beginning to participate in it; we have not yet been part of the meetings. So we will be learning about this process and participate in this process. We look forward to working--we have a very good working relationship with the State insurance commissioners and we will continue that relationship and work well with them on the international front. Mr. Neugebauer. Is this something that the Fed supports, though? Do you support developing international standards to impose on domestic insurance companies? Mr. Alvarez. I think the effort is designed to make sure that global systemically important insurance companies, of which there will no more than a handful, are held to standards that ensure that they don't create systemic risk and that there is a competitive sort of level playing field internationally for those largest of insurance companies. That is something that we think is worth exploring. We have no predetermined idea on how to do that, so-- Mr. Neugebauer. So what would be a way that the Fed would work with the State regulators and the domestic insurance companies to get their input on this issue? Because I think one of the things I hear from a number of them is that they don't feel like they really, in many cases, have a seat at the table and some of these discussions aren't very transparent. Mr. Alvarez. Understood. And so we meet quite regularly with--the Federal Reserve has just gotten responsibility under the Dodd-Frank Act for supervising designated systemically important institutions, a couple of which include insurance companies and savings and loan holding companies, which include a number of insurance companies. So we have begun discussions with insurance companies directly to understand their business model, to understand the capital regime that they are under, the supervisory regime they are under. We also meet with the NAIC, and in particular certain lead insurance regulators, to understand the framework. We want to be educated there. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from New York, Mr. Meeks, the ranking member of our Financial Institutions Subcommittee. Mr. Meeks. Thank you, Mr. Chairman. I didn't get a chance to make an opening statement, but I want to thank all of you for what you do. I think it is tremendously important. After the crisis, we knew we had to do better, and that is what Dodd-Frank was all about. And I appreciate the work that you are doing. We should learn from those crises and try to make sure we do better. I have heard, and I am sure you have heard a lot about the detrimental impacts of one-size-fits-all regulations or banking supervision. And that has been particularly devastating for community banks and credit unions. And all of your structures, or all of you in your leadership structures, have an office or a council or a committee that is exclusively dedicated to community banking issues for small and mid-sized financial institutions. However, the U.S. Treasury, which plays a major role in setting economic policy and financial and banking policies, which often have to regulate, does not have such an office. And they have all sizes--this one-size-fits-all has been devastating, as you know, because of the number of community and financial institutions that keep failing due to regulatory burdens. I am working on a piece of legislation that would direct the U.S. Treasury to reassign one of its Assistant Secretaries to community financial institutions so that we have properly calibrated policies that are appropriate to their business model and environment. So my question is, do you agree with me that we need to make sure that we have appropriate banking policies and supervision that are properly calibrated to the needs and business models of community financial institutions? I guess I will first address that to Mr. Alvarez. Mr. Alvarez. We do believe that regulation should fit the activities and the complexity and the size of the organization. In fact, as I mentioned, we have set up several councils to try to make sure we understand and have input from community banks in particular about the rules that we design. And we seek public comment always on alternative approaches that reduce burdens, especially for community-- Mr. Meeks. And Treasury should follow that rule, don't you think? Mr. Alvarez. Treasury doesn't have a direct supervisory role, as we do, so I don't know why they-- Mr. Meeks. I am just saying a role of having--making sure that we don't have one-size-fits-all, that they should have someone who can focus on the rules and regulations on small and community banks and credit unions so that they are not mixed in with the super big. That would make sense. Doesn't that make sense to you? Mr. Alvarez. It makes sense to me. Mr. Meeks. Yes. You too, Ms. Friend? Ms. Friend. Congressman, I definitely agree that one-size- fits-all is not the way to go. And we have taken action to make sure that doesn't happen wherever we can. Mr. Meeks. Thank you. And I would assume--I don't think anybody really disagrees with me on that point, right? Okay. Silence. Okay. Let me ask Mr. Osterman this question--and this might not be the case in other States, but I know it affects my State of New York. Number one, I, like you, want to make sure that we get rid of any--and eliminate any illegal payday lenders that are in New York and elsewhere. I want to make sure that those are illegal. We want to get rid of all of those folks, those that are hurting people in that regard. But I also want to make sure that we don't throw the baby out with the bath water in that if you have someone that is legal and doing good work, that we eliminate them. That is starting to take place in New York with some of the check cashers. For example, I was recently told that Capital One Bank notified all of its check-cashing companies that it was terminating their bank accounts and that Cap One happens to be banking more than half of all the New York check-cashing companies. Now they are scrambling, they are trying to find some other banks, but if they don't, they will go out of business. And that is particularly concerning to me because I know, for example, when I lived in public housing, my parents paid their rent through the check-cashing places. So my question to you is, how can you assure me that your efforts to make sure that we are cutting out the illegal businesses is not causing legal businesses to be denied banking services? And are these businesses--will they be able to find other accounts in the future, provided they can assure that they are legal and operating within compliance of the appropriate rules and regulations? Mr. Osterman. Thank you for your question. The FDIC's efforts are really focused on making sure that institutions are aware of the risks associated with working with third-party payment processors and high-risk merchants and making sure that they take appropriate action. We have actually put out a policy statement that indicates that as long as financial institutions properly manage these relationships and risks, they are neither prohibited nor discouraged from providing payment processing services. And in fact, I noted that in the American Banker this morning, there was an article regarding the fact that the payments industry is looking at ways to try to address the concerns that have been raised, so they can work with the banks. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from New Jersey, Mr. Garrett, the chairman of our Capital Markets and GSEs Subcommittee, for 5 minutes. Mr. Garrett. Thanks, Mr. Chairman. You know, 2 months ago this committee held a hearing with the principals of various agencies before us dealing with the CLO market and the consequences of the Volcker Rule as it is being implemented. Now, 2 months later and the night before our hearing today, we have seen come out somewhat of a half-baked proposal to try to solve this problem by the regulators. The issues dealing with the CLO are extremely important, and it is becoming clear to me that besides this particular issue, but the way that this issue and other issues are being handled, it has become clear to me that the banking regulators that are before us basically have a contempt for the American public and this Congress in the manner that they handle it. Let me begin with Ms. Friend. As a former top Senate Banking staffer, I would assume that you have a firm foundation on the notion that the financial regulatory community is acting under the auspices and the authority given to it by Congress. I know that you helped write much of Dodd-Frank. And let me then refer you to some of the statutory language and others in the Volcker Rule, under rules of constructions, that said, ``Nothing in this section shall be construed to limit or restrict the ability of a banking entity or a nonbank financial company by the board to sell or securitize loans in a manner otherwise permitted by law.'' Also, a study was done in the FSOC study on the Volcker Rule. It said, ``The creation and securitization of loans is a basic and critical mechanism of capital formation. Congress determined that none of the restrictions of the Volcker Rule or its backstops will apply to the sale or securitization of loans.'' It seems amazingly clear to me what the intent of Congress was, but apparently, it was not amazingly clear to the regulators. I guess my question is, if the banking regulator is not up to it as far as following the clear rule of the law that Congress passes, and if they are not up to following their own studies and interpretation of that law, should the Congress rethink granting all the power to the regulators, or should we do something else to hold the regulators accountable when they cannot follow the rule of law? Ms. Friend. The CLOs that are at issue are loans, but they are also debt and equity, and so the way we issue the regulation, which we believe is consistent with the intent of Congress, it would catch these CLOs and-- Mr. Garrett. Obviously, you are not following the intent, when the intent of the statute I just read to you could not have been clearer. You were there when this was being created. The intent of the sponsors was clear. I am at a loss as to why the regulators are blind to this. Turning now to the Fed, Mr. Alvarez, each year the Fed does what is called an operations review report--basically a yearly performance review of the Fed's different teams of supervisory and examination staff. And I know you are familiar with it. I have here a copy of the 2009 report of the New York Fed. Now, there is much criticism of the Fed as far as its banking regulatory role, not to mention its monetary policy. But to help Congress out here, I think it would be helpful for members of this committee to see not just what has been provided, but unredacted copies of the operation review report from 2000 and 2003 of the time leading up to the financial crisis. Could you please provide members of this committee with an opportunity to review these reports? Mr. Alvarez. The operations review is an examination that we do of the reserve banks to make sure that they are implementing the policies and following the directions of the Board of Governors-- Mr. Garrett. Right. And the question is, can you provide us with an unredacted copy of that so we can have the information to know what you were doing up to the crisis so we can see whether it is justified as far as the criticism of the way that regulators handle the crisis leading up to it? That is a yes- or-no question. Mr. Alvarez. I think it would be something that we would be willing to discuss with you. Mr. Garrett. Thank you. Mr. Alvarez, in my last minute, the G-20 created the FSB several years ago. It appears that the Fed is working closely with the FSB. However, the inner workings of the FSB are to the public and Congress basically a black box. I am wondering whether or not you can assure us that more information will be given to us as to the operations of them, and also tell us, inasmuch as the FSB has designated, secondly, MetLife as a global systemically important institution, does that mean FSOC is going to be forced to designate MetLife as an SIFI or any other entities that FSB designates as a globally systemic institution? And my time is out. I would look forward to the Chair letting them answer those questions? Chairman Hensarling. The witness can have a brief moment to answer. Mr. Alvarez. The designation in the United States is up to the FSOC, not the FSB. The FSB designation doesn't have the force of law in the United States. It would be a source of criticism of the operations of the regulations in the United States and the U.S. system if there wasn't some kind of implementation of FSB rules. But the decision is a U.S. decision. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Missouri, Mr. Clay, for 5 minutes. Mr. Clay. Thank you, Mr. Chairman. And this first question is directed to Mr. Osterman. I support what you are doing to cut off illegal payday lenders who operate on the Internet. However, regulator pressure and Operation Choke Point has also caused many banks to stop banking legal and licensed Missouri companies that provide essential financial services to many of my constituents. The ends do not justify the means, especially when consumers are hurt the most. My constituents need basic services. They are folks who have families. They need to cash their checks and pay their bills. They need to be able to get a loan so that they can get some cash when they need it. And they need to be able to do this every day where they live. These are folks who cannot get loans from banks either because banks are not in the community or simply can't or won't cash their checks or make small-dollar advances. Last week I sat down with a young constituent and executive, an Air Force vet, and a father who told me about needing an advance to pay his son's college tuition on time. His son is on a partial basketball scholarship but the college wanted his money. His bank wouldn't give him a loan. He was able to get a loan because a small, nonbank lender was there to give it to him. I asked him if it was expensive, and he said it was and that he understood both the annual percentage rate, the actual dollar cost, and made the decision to get the money, pay the college on time, and pay off the advance early. He said that he counts on the relationship he worked to build with the nonbank lender and has used it for several cash flow emergencies. Now, I am hearing that legitimate small lenders of the type that helped this young man are having their bank accounts closed, as Mr. Meeks mentioned earlier. And I am very concerned about the situation because it is going to hurt my constituents who need the services. Can you assure me that this was not what you intended when you went after illegal businesses? Mr. Osterman. Congressman, I can assure you that FDIC was not--what we were trying to do, actually, with the Operation Choke Point--which actually was not our program; it was a DOJ program--was to help them to stop illegal activity. We have put out a financial institution letter making it clear to our examiners as well as to the industry that our supervisory efforts are focused on making sure institutions are acting in a safe and sound manner and that as long as the activities of these payment processors are done in a way that avoids risk, the institution should go ahead and work with these entities. And in fact, we have met with our regional offices and field office examiners and given that message to them, as well. So we issued an actual financial institutions letter back in September of last year to address the issue. Mr. Clay. So have those closures of the bank accounts--has that ceased? Mr. Osterman. I am hearing that there--that may be still going on to some degree. And I think to the extent that is happening, we would like to hear about it, because that is not the message that we are trying to send. Mr. Clay. All right. I will certainly share that with you. Let me ask Ms. Fuchs, how did the CFPB get off--as the chairman mentioned--to such a poor start in regard to disparities in evaluating employees, as well as giving out bonuses? What happened there? Ms. Fuchs. Mr. Clay, I understand your question to be about our performance management system and the American Banker article. The CFPB is right now conducting further evaluation of that data. We are also going to be engaging an outside resource to help us with that evaluation. The kind of institution we are trying to build is one which is fair and transparent for all employees. The performance management system is also something that we are currently negotiating with the National Treasury Employees Union, so we will have good representation of views during that discussion. And that is the work that we are trying to do to address what that data showed. Mr. Clay. And you all have been up and running for about, what, 3 years? Ms. Fuchs. We have been up and running for 3 years. During a large part of that time we were doing the work that Congress asked us to do by writing rules to fix mortgage markets. Mr. Clay. Thank you for your response. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from North Carolina, Mr. McHenry, chairman of our Oversight and Investigations Subcommittee, for 5 minutes. Mr. McHenry. I certainly appreciate my colleague from Missouri asking that question of the CFPB, because you did contract with an outside investigator to determine that there was retaliation against an employee, but 6 months later, the Bureau has done nothing. So simply contracting with outside groups does not address the deep problems the CFPB has. But to my colleague's other point, which is Operation Choke Point, I do want to bring this up with Mr. Osterman. You want to stamp out illegal businesses, but in order to do that you need to give legal businesses proper guidelines so they can be banked. The Electronic Transactions Association has put forward a significant report that they worked on for the last 8 or 9 months. Are you familiar with this report? Mr. Osterman. I am not. Mr. McHenry. You are not? Okay. They have indicated that they have been in contact with the FDIC to give their merchants and independent sales organization the underwriting and risk tools necessary to comply. Will you take a look at that? Mr. Osterman. Absolutely. Mr. McHenry. Okay. Then, the additional question would be this: Is the FDIC coordinating with the CFPB to give guidelines to banks so that they can bank these institutions that are providing a legal service for a legal entity? Mr. Osterman. Of course, the CFPB Director is on our Board, so to that extent-- Mr. McHenry. I am familiar with the construct of it, but are you coordinating in terms of rule-writing? Mr. Osterman. We are not doing the rule-writing on the-- Mr. McHenry. That is part of the problem. The industry doesn't have guidelines by which they can follow what they believe the FDIC's intent is. Mr. Osterman. In that regard, as I mentioned, we do have a financial institutions letter that does lay out our guidelines in connection with these types of programs. And basically, what we are saying is these types of programs can involve high-risk activities that could create litigation risk and reputation risk for financial institutions. So, they need to do due diligence to ensure that the folks whom they are banking are acting in a safe and sound manner. Mr. McHenry. Sure. Okay. Mr. Osterman. And so-- Mr. McHenry. My time is brief, and I have another question for Ms. Friend. Mr. Osterman. Yes. Mr. McHenry. I know others will have questions about this. I was notified about three OCC examinations, at three different financial institutions. I just want to tell you this story and get your response. At bank one--not a bank--Bank A, if you will--the problem began when examiners expressed concerns about the bank's military accounts using an overdraft service. The examiner pulled data and was concerned about the frequent usage of overdraft with this account. When the examiner was informed that this account was 5 to 10 years old, and that the user had regularly utilized overdraft, the examiner said it was proper that if the person kept using this overdraft protection and it became a behavior, they should close the account. Now, when indicated that the person requested overdraft protection and utilized it they said, ``Well, it could pose a reputational risk.'' At Bank B, an examiner required that the bank remove overdraft service if the account holder withdraws or uses overdraft protection more than 25 times a year. And after implementing what the bank was told to do by the examiner, the customer came back and demanded that overdraft protection be put back on. At Bank Three or C, the definition of frequent user was trying to--was--tried to be divined from the examiner and was told a very different story than the first two institutions were told. Is there a justification for having different rules for different institutions about overdraft protection? Ms. Friend. Congressman, there is a rule on overdrafts, and our examiners should be following the specific rule. We don't have separate guidance to examiners on overdraft protection beyond the regulation. Mr. McHenry. Are examiners supposed to tell folks to close accounts if they are utilizing overdraft protection within the guidelines you have given? Ms. Friend. I don't think that we have specific separate guidance that is independent of the regulations, so they would be expected to act in accordance with the regulations. Mr. McHenry. Okay. And would you believe that this inconsistency of regulation would lead to more underbanked, or those who are unbanked? Ms. Friend. I think we would be concerned if there is an inconsistent interpretation, and so it is difficult to respond with respect to each individual institution without having all of the information available. But again, we look for consistency in examination based on the rules. Mr. McHenry. And this is highly inconsistent. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Georgia, Mr. Scott, for 5 minutes. Mr. Scott. Thank you very much, Mr. Chairman. Let me ask my first question to you, Ms. Fuchs, with the CFPB. I want to follow up on the Chairman Hensarling's point. What we have here, the situation that the CFPB has placed our auto dealers in is no man's land. We sort of got them in a situation where they are guilty if they do, guilty if they don't, and when you put these two factors together, in your letter of--or your rulemaking and guidance of last March 13th, you arbitrarily issued a statement of discrimination within the auto lending's indirect lending program. Now, when you make a charge of discrimination against African-Americans or minorities anywhere, that is very explosive. Race is very explosive. You are dealing with a situation yourself with charges of discrimination within the ranks and the employment and promotion of the CFPB. I only raise that point to let you know that in your response to Mr. Clay you were very thoughtful, you went back, we are doing this, we are trying to get at the bottom of this. But you are not treating the auto industry with that same kind of sensitivity. And what you have done is--the CFPB has, I think, an unintended consequence here by making a blanket statement and then not giving guidance the background, the data, the methodology, all the things that you are looking at yourself in dealing with your own discrimination charges. So, it is important to me and to other members of this committee that we get this threat away from these auto dealers. On the one hand, they put forward a solution of offering a standard fee and then working with the consumer in a way in which they could have a discounting of the interest rate. You take that away from the dealers and some of these dealers might have to close up shop. Many of them, particularly in a district like mine--I represent the metro area; I represent six counties around Atlanta, where the auto dealers are, and smaller community towns where they anchor that community. They go out of business because of this. So I want to urge you and the CFPB to resolve this issue and get the auto dealers out of limbo and remove the threat to their ability to discount those interest rates for their customers. If there is discrimination, I don't know where it is. All I am saying is treat them the way you are treating yourself in this. And if it is there, if there is a fire of discrimination there, we will put that fire out. But don't throw the whole blanket on them and assume. There are many minority-owned dealerships. And if you throw that blanket on them, you are saying that African-American dealers are discriminating against African-American people? No. That is not the case here, but that is the situation you are in. But I wanted to say that. Will you do that? Would you get this threat away from the auto dealers? Ms. Fuchs. Thank you so much for your comments, sir. I should say the question was asked earlier of whether we want a single parent to have access to a car, and we do. We want those people to have access to fair and transparent lending, as well. The CFPB does not have jurisdiction over auto dealers. We have authority with respect to indirect auto lenders. Mr. Scott. But you have made a claim there. Where is the proof? We have asked for that. Show us where that discrimination is? Ms. Fuchs. Thank you, sir. We are engaged in a constant dialogue with the industry about these issues. We held a forum at which various methods of compensating dealers were discussed. We have also had briefing calls with many, many stakeholders and spoken at auto dealers conferences. Mr. Scott. Okay. Okay, thank you. I didn't mean to go on for so long, but I have to ask a question of the FDIC, please, thank you. But let's help those dealers. On the operation--I have put it here someplace; what did I say. I got so carried away with that comment. Oh, the Operation Choke Point--FDIC--can you tell us what is going on there? Chairman Hensarling. Regrettably-- Mr. Scott. Thank you. I'm sorry. Chairman Hensarling. My sense is that some other Member may be asking those questions before the day is over. The Chair now recognizes another gentleman from Georgia, Mr. Westmoreland, for 5 minutes. Mr. Westmoreland. Thank you Mr. Chairman, Ms. Fuchs, would you describe in one sentence maybe, what is the role of the CFPB? Ms. Fuchs. Congress set the purpose of the CFPB in the Dodd-Frank Act, and-- Mr. Westmoreland. Not what Congress said. What do you say the role of it is? Ms. Fuchs. The role of the CFPB is to help make the markets for consumer finance more transparent and to enable consumers to have access to fair and transparent products and services. Mr. Westmoreland. Okay. And going back to what the gentleman from Missouri asked about, the gentleman who got a loan for his son's tuition, if somebody, let's say BNC credit, needed $500 or $800 and called the CFPB and said, ``Hey, you know, I have BNC credit,'' where would you recommend that they go to borrow that money? Ms. Fuchs. It is hard in the abstract to recommend where a person should go to get short-term, small-dollar credit. It would depend on the circumstance of the person and what was available to them. Mr. Westmoreland. But what would you recommend? A big bank? Bank of America? What would you recommend to him? What would be your choices? Ms. Fuchs. There are many choices out there right now for consumers. There are opportunities to go to banks for credit, and there are opportunities to go to nonbank lenders for credit. It really will depend on the circumstances of the consumer, such as if they have savings or if they don't have savings--they may have different options available to them. Mr. Westmoreland. I don't think there are as many out there as you think there are. And Operation Choke Point, as my colleague from Georgia has pointed out, is trying to put as many of these people out of business as you can. I want to read a statement from Bill Isaac, who is the former Chairman of the FDIC. He recently stated, ``the same slippery slope that the DOJ uses today to choke off payday lenders from banking services could tomorrow be used on convenience stores selling large, sugary sodas, restaurants offering foods with high trans fat content, or family planning clinics performing abortions. ``Ironically, at the same time the government is making life miserable for businesses seeking to meet consumers' needs for emergency funds, it is encouraging banks to offer services to marijuana dealers.'' Now, how do you all right that? Mr. Osterman? Mr. Osterman. In terms of--I am not quite sure I understand your question, sir. Mr. Westmoreland. The question is, when you are trying to keep people who have a lending service that they are doing to people who might not be able to walk in to a normal, traditional bank and do business, and you are trying to put out of business some of those people who do provide that service while at the same time trying to make it possible where banks can do business with people who sell federally illegal drugs? Mr. Osterman. We are not trying to put legitimate businesses out of business. Mr. Westmoreland. You are not? Mr. Osterman. No sir, we are not. Mr. Westmoreland. Okay. Have you ever put anybody out of business or kept anybody that was State-regulated, or federally-regulated from doing business with a bank? Mr. Osterman. In terms of what we are looking at is the safety and soundness of our banks, and as we have said-- Mr. Westmoreland. I know that. I know you are. But have you ever told somebody who had a legal business, as either regulated by the State or the Federal Government, that they could not--that a bank could not do business with them? Mr. Osterman. Not that I am aware of. Mr. Westmoreland. Okay. So, Operation Choke Point has no reality to it? Mr. Osterman. Operation Choke Point, as I have said before, sir, is a Department of Justice program that was going after illegal activity, and we were asked to provide more information and that is what we did to address illegal activity. We did put out a financial institution letter to make it clear-- Mr. Westmoreland. How do you describe illegal activity when somebody is regulated by some State board-- Mr. Osterman. Well-- Mr. Westmoreland. --that permits them to do business? How is that an illegal activity? Mr. Osterman. For example, for payday lenders--in several States, payday lending is illegal. And so, when banks are dealing with these lenders and they are in different States, the banks need to be assured that those lenders are, in fact, acting in a legal way. Because if they are not, it actually opens up the institution to risk, in terms of being sued by State attorneys general and others because they are not complying with the law. Mr. Westmoreland. Just typical, picking winners and losers. Thank you. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Texas, Mr. Green, the ranking member of our Oversight and Investigations Subcommittee. Mr. Green. Thank you, Mr. Chairman. Mr. Chairman, understanding that the rules do not allow us to yield a specific amount of time, I would like to at this time yield up to 1 minute, such time as he may consume up to 1 minute, to my friend from Georgia, Mr. Scott. Mr. Scott. Mr. Green, you are very kind. You are a good man. God bless you. Thank you. Because this is important to me, on the Operation Choke Point, the gentleman from the FDIC, you are basically working with the Justice Department on this, as I believe I understand, doing a fairly good job in terms of getting the scam artists and those. But without perfectly clear guidance and direction, it could go a little too far. For example, I am concerned about what you refer to in your guidance as a firm with a reputational risk. What does that mean, reputational risk? Because my fear is that it could have an unintended consequence. Mr. Osterman. Typically, in terms of high-risk activities, these are things that the institutions themselves, the banks themselves, have to make a business determination on whether they are willing to enter into an arrangement with that entity. But for example, as I said before, if payday lending was illegal in a particular State, to actually provide that service, that creates reputational risk to the institution because it is then being seen as engaged in illegal activity. And so what we have said in our guidance is that banks should do due diligence to ensure that they are identifying potential risks. And as long as they properly manage the relationships and risks, then they are not going to be prohibited--we are not prohibiting them from entering-- Mr. Scott. Are there other industries? Payday lending makes a good point in other States, but are there other industries where you categorize as reputational risk? Thank you, Mr. Chairman. Thank you, Mr. Green. Mr. Green. Thank you. I thank the gentleman for yielding back. Mr. Chairman, I would like to, if I may, just extend a welcome to Mr. Horsford to the committee. He has acquitted himself well since he has been in Congress, and I am confident that he will do a very good job, an exceedingly good job on this committee. I am one of the many persons interested in helping small banks, and we have endeavored, in doing this, to find out what a community bank is. We have allowed this term to become pervasive. While I see it as a good term, it is rather nebulous. And I have not, to this day, been able to get a good definition of a community bank. So let me shy away from the term ``community bank,'' and let's talk for just a bit about small banks. And my first question will go to the gentleman from the FDIC. I would like to know, is it true that most banks in this country are small banks and that as many as 90 percent of all banks are small if I use $1 billion or less as my benchmark? Mr. Osterman. Yes, that is correct. Mr. Green. So we have 90 percent of the banks at a billion dollars or less. And is it true that this 90 percent of banks did not create the circumstance that we had to negotiate in 2008, what we call a collapse of the--an economic crisis or something of that nature? Mr. Osterman. Right. The crisis in 2008 involved much larger issues than the community banks. Mr. Green. And given that the community banks, the term you are using now, I am using small banks, using my benchmark at a billion dollars--and I don't begrudge you at all for saying community banks, because that term has become very pervasive. But I have now switched, and I am working now to see what I can do for small banks, given that 90 percent of the banks are under a billion dollars. And I want to work with legislation to help them, because I am also finding that most of the banks that are troubled now, possibly about to go out of business, are small banks. Is this a fair statement, more so than banks above a billion dollars? Mr. Osterman. We certainly have seen a consolidation of the industry, and when you look at the banks that have failed during this crisis, the vast majority are the smaller institutions. Mr. Green. Do you find, as you are before Congress giving your testimony, that many of the questions that we ask, we should ask of ourselves? Because many times we ask you questions about regulations that we impose upon you that we seem to decry your enforcing? Mr. Osterman. The-- Chairman Hensarling. Apparently, the gentleman will have to answer his question himself, because the time of the gentleman has expired. Mr. Green. Thank you, Mr. Chairman. Chairman Hensarling. And the Chair now recognizes the gentleman from New York, Mr. King, for 5 minutes. Mr. King. Thank you, Mr. Chairman. Mr. Alvarez, I would like to question you regarding the collateralized loan obligations (CLOs) and say at the start that I identify entirely with the remarks of Congressman Garrett. As you know, the Fed has just issued a 2-year extension for the conformance period for banks that hold CLO debt. This comes nearly 2 months to the day that Governor Tarullo told this committee that Volcker's impact on the CLOs was the interagency working group's number one priority. Given the time that has passed, I would have expected more. The conformance period extension may minimize the pain, but it certainly does not eliminate it. Even with the extension, banks will suffer multibillion dollar losses. The OCC admits to $3.6 billion; other estimates place the number as high as $9 billion. These are losses that will be incurred on performing assets solely due to the actions that the bank regulators have taken in applying the Volcker Rule. In fact, the expected losses on these assets are negligible. So I have two questions. First, do you believe that depleting bank capital by billions of dollars is a result that is consistent with safety and soundness regulation? And second, this aspect of Volcker is clearly inconsistent with safety and soundness considerations in Section 13D1(j) of Volcker, which allows the regulators to permit activities that promote bank safety and soundness. So my second question would be, why don't you use this authority to grandfather legacy CLO assets that are on banks' balance sheets? Mr. Alvarez. Let me start by putting the problem in perspective. There is approximately $300 billion in CLOs outstanding. That includes CLOs that would be exempt under the Volcker Rule and CLOs that would be covered by the Volcker Rule. As Congressman Garrett pointed out earlier, any CLO that is entirely loans is exempt from the Volcker Rule requirements. It is only the ones that have nonconforming non-loan assets in the CLO. So of those $300 billion, we think about a hundred--based on the call reports, about $105 billion worth of CLOs are owned by banking institutions. That is, of the 6,800 banks in the United States, something like 50 banks report that they own CLOs. And then of those 50 banks, a handful of the very, very largest in this country own 90 percent of the CLOs. So this is largely a problem that is concentrated with a small number of very large institutions. Now, what the Federal Reserve has done by granting an extension to, or by indicating it would be willing to grant, an extension for a couple of years, is it turns out that something on the order of 50 percent of the CLOs outstanding will mature or be repaid before the end of 2017. So much of the CLOs will be done by that period of time. And as many people have testified before this committee, the CLOs that are owned by banking institutions have largely been performing. There are very few that are loss producing at this point. Having 2 extra years allows institutions more time to divest if they think that is appropriate, to conform the CLO to something that would be exempt from the Volcker Rule, and there is a variety of ways that could happen. Mr. King. The OCC estimates up to $3.6 billion in losses; others go as high as $9 billion. Is that healthy for the economy? Mr. Alvarez. I think that the-- Mr. King. And couldn't that force banks in effect to hold bargain basement sales? Mr. Alvarez. I think the $3.6 billion estimate was assuming that an entire chunk of CLOs would default that no one really believes will default. That was an extreme example. And I will let the OCC speak to that, but I think they were not predicting a $3.6 billion default. And in fact, the representatives of the CLO associations have indicated that the CLOs are very well-performing and have very few losses in them. And I think that is historically accurate. Mr. King. So you do believe that this adds to safety and soundness of the banking community--banking institutions by allowing this to go in place after 2 years? Mr. Alvarez. The Volcker statutory provision does not have an exception in it for actions that will cause losses. It allows a limited authority to grant an exception if it would, in fact-- Mr. King. Are you saying you would not be allowed to make an exception under Volcker, that Volcker would preclude you from this? Mr. Alvarez. Volcker does not have a grandfathering provision and it does not have an exception that allows us to cause institutions to avoid losses. Mr. King. You are saying it would preclude you from doing that? Mr. Alvarez. That is right. Mr. King. I would have to disagree with that. I think Congressman Garrett disagrees also. Mr. Chairman, I have a series of other questions on another issue. Could I submit them in writing to the panel? Chairman Hensarling. Yes. Without objection, that will be made a part of the record. The gentleman's time has expired. The Chair now recognizes the gentleman from Illinois, Mr. Foster, for 5 minutes. Mr. Foster. Thank you. Chairman Hensarling. Apparently, the Chair does not. He has been informed by the Minority side we are going to the gentleman from Minnesota. The gentleman from Minnesota is recognized for 5 minutes. Mr. Ellison. Allow me to thank the chairman and the ranking member, and Mr. Foster as well. I know we all have busy schedules and I will try to be quick. Ms. Fuchs, thank you for the work that you do. I think the CFPB does have a responsibility to ensure that people of color are not overpaying for autos. What did the CFPB find in the price disparity studies by ethnicity and how significant are the differences? Ms. Fuchs. The Bureau has one matter that is an enforcement matter that has been public, and in the materials related to the enforcement matter, it talks about the specifics of that matter. Other matters that the Bureau is working on are ongoing either investigatory or supervisory matters, and so there are details that can be shared at this time. Mr. Ellison. So you don't want to talk about the price disparities by ethnicity? You don't talk about whether there is a problem and how serious it is? Ms. Fuchs. The Bureau hasn't done an analysis that looks across the entire industry and finds some number of disparity. We are looking at each individual lender that is engaged in indirect auto lending across their portfolio to assess whether there are disparities. We have been talking with the committee about the particular matter that-- Mr. Ellison. Ma'am, I am trying to give you a chance to talk about your good work on eliminating disparities and you are declining. Ms. Fuchs. I am-- Mr. Ellison. Is that what you really want to do? Ms. Fuchs. Perhaps I am not understanding the question. Mr. Ellison. Fine. Ms. Fuchs. I apologize. Mr. Ellison. Somebody else, something else. I know that the regulators have increased enforcement against money laundering. HBSC has been fined $1.9 billion for transferring billions of dollars from Mexican drug cartels and for violating sanctions laws, doing business with countries like Libya, Sudan, Burma, Cuba, and Iran. And I am glad that agencies are indicting money launderers, and I think that all those who are engaged in that activity deserve to be held accountable. But one of the things that I have become concerned about is how that regulatory system might be swinging a little too far, because what I have seen in my own district over the last 2 years is that money service businesses that send money to their families, particularly in Somalia, are having their checking and saving accounts closed by credit unions and banks. I have a group of Iranian graduate students at the University of Minnesota who were told that their bank accounts would be closed, and I have people with Muslim names who are having their checking and savings accounts closed. The difficulty is you have to stop terrorist financing. And the other difficulty is if you go too far in that direction, you close off good people just trying to do legitimate transactions. I have tried to raise these issues before, and I would like to submit some things for the record: a Treasury blog post from December 23, 2011, entitled, ``The Importance of Remittances Through Legal Channels to Somalia.'' And without objection, I would also like to submit a July 8, 2013, letter from the Department of the Treasury clarifying that college students from Iran can have bank accounts. Mrs. Capito [presiding]. Without objection, it is so ordered. Mr. Ellison. Yes, thank you. Maybe, Ms. Friend, you could discuss this issue a little bit. Has your agency been trying to provide training and guidance for your regulated financial institutions to enable them to better understand the rules regarding knowing their customers? And do they have any concern that in our zeal to obey laws to stop terrorism financing, we might actually be closing off legitimate transactions? Ms. Friend. Congressman, I know the folks at the OCC have been in touch with your staff and we are concerned. We share concerns that if there are legitimate businesses that we are not asking banks to close off those accounts. Essentially, it is a bank's decision who to do business with. What we direct them to do is to do due diligence and they need to have the proper controls to deal with whatever risks that they assess. Some institutions, we have found, have decided that rather than go through the additional burden of providing the types of controls that they believe are necessary, might decide that they are not going to bank a particular entity. Obviously, with respect to Muslim names, if there is evidence that they are applying something in a discriminatory manner, that would be something we are concerned about and we are looking into it. So we are looking forward to a continued dialogue with your office. Mr. Ellison. I want to thank you for that. And just please do continue to assure financial institutions that they don't have to go beyond the line to meet the requirements of the law. Thank you. Mrs. Capito. The gentleman's time has expired. I am going to recognize myself for 5 minutes for questions. Ms. Fuchs, in my opening statement I talked about the qualified mortgage, and I am Chair of the Financial Institutions and Consumer Credit Subcommittee. We have done a lot of hearings on this. And I am concerned that the borrower who is going to fit into this QM box is going to be the one who is least likely to be able to go to alternative sources to find mortgages besides their community banks or credit unions. What legal risks are associated with non-QM loans, in your opinion? Ms. Fuchs. Thank you, ma'am, for the question. As I think you know, the CFPB--drawing the lines on what would be a QM and what would not be a QM was one of the most significant aspects of the rulemaking, and the rule was designed to incorporate the vast majority of mortgages that are being made within the QM category. For mortgages that are outside the QM loan, we anticipate that those will continue to be made. In fact, I saw an article just yesterday that talked about something like 30 percent of banks would be looking at having lending programs that are outside the QM loan--the QM category. For those matters, the banks are subject to following ability to repay requirements, and our--we anticipate that by doing a return-to-basic underwriting, as we had in the past, there actually will be fewer foreclosures. And that-- Mrs. Capito. You would agree that there is more legal risk associated with the non-QM loan, correct? And that is the way it is structured, the rule is structured. Ms. Fuchs. The QM categorization does provide some protections for institutions. However, the liability is closely cabined, and outside of the QM category, if banks are engaging in an ability-to-repay calculus, then they should be in a good position with their solid underwriting. Mrs. Capito. I think--and we have a survey here that says 33 percent of respondents indicated they would only make QM loans. So, a third of the lenders in this particular survey said that they would only lend in the QM box. I have a feeling it is actually a little bit larger than that. And I have heard--we have heard from community leaders who are actually exiting the mortgage lending space altogether. You mentioned in your opening statement that before you do a rule you have a meeting and you talk about cost-benefits and have a report. Are those reports public? Ms. Fuchs. Yes, the Bureau goes through several things in order to look at the costs, benefits, and impacts of its rules. From the small business panels that we convene, there is a report that results from that. The brief of panels are done as a partnership between CFPB, OMB, and the Small Business Administration. During the panels, we take input from representatives of small businesses in the specific area that we are writing a rule, and that-- Mrs. Capito. Yes, and I don't mean to interrupt that. I only have 2 minutes left. Ms. Fuchs. No problem. Mrs. Capito. Do you take into consideration the--did you talk to community bankers and credit unions and all those lenders in that space as well? Yes or no? Ms. Fuchs. Yes, the Bureau does. Mrs. Capito. Yes, and then that is public? Their response is public--the bankers? Ms. Fuchs. The Bureau, in the course of its rulemaking, considers the impact of its rules on small lenders-- Mrs. Capito. Are those public reports? Ms. Fuchs. It publishes that in its notice of proposed rulemaking for comments. Mrs. Capito. Okay. We talked just a little bit about the remittance transfer rule. This is another one where a lot of people are exiting the business because of the onerous regulations imposed here. Some lenders do it for customer convenience; some do it for customer necessity. And I would just say that it is making it more difficult and more expensive. I am not going to really ask a question on that, but lodge a concern. Mr. Meeks and I have been working on a bill that would work on duplication and conflict of rules. And I know every 10 years you are supposed to go in and look at the conflicts. We are pressing for a shorter timeframe there. Mr. Alvarez, do you think it would be useful to have a shorter timeframe in terms of looking at the rulemaking processes to the duplications? Because that was supposedly one of the goals of Dodd-Frank and I am not sure we have actually seen that. Mr. Alvarez. That is an exercise that, by law, we go through, as Amy Friend mentioned earlier, under the Economic Growth and Regulatory Paperwork Reduction Act. It is every 10 years. The Federal Reserve has an informal policy where we review our rules every 5 years. We are a little off schedule because we have been spending so much time on the Dodd-Frank Act, but we expect to get back to that schedule. So a shorter period of time of reviewing those rules is a perfectly good idea. Mrs. Capito. Mr. Osterman, do you have the same-- Mr. Osterman. Yes. I think sometimes it takes a while for the rules to be in place to see how they interact but a shorter timeframe is something we could do. Although, given the vast numbers that we have to go through, we are getting ready to go through a 10-year review right now, and as Ms. Friend indicated, she is the head of the legal advisory group that is coordinating this effort, but with all the rules that are out there, to go through and review them all takes a long time in terms of going out and noticing those for the public-- Mrs. Capito. Right. Imagine you are a community banker and you are trying to deal with all this-- Mr. Osterman. Exactly. Mrs. Capito. You guys are dealing with it every day. It is your job. So I would encourage you to try to adopt that mindset, maybe, sometimes to try to help those folks out. Next, Mr. Foster from Illinois is recognized. Mr. Foster. Yes, thank you, Madam Chairwoman. Ms. Friend and Mr. Alvarez, would it be possible to provide an estimate or a range of estimates of the additional losses that might be expected for banks which are forced to divest of the CLOs within the 2-year extension period, compared to the indefinite grandfathering that passed out of this committee? Ms. Friend. Let me first just discuss the $3.6 billion number that was in our economic analysis. It came up earlier. And that was attributable to the divestiture of CLOs and CDOs and any other impermissible fund. And so when we looked at that estimate, it ranged from 0 to 3.6 because it really depends upon what the market reaction is going to be. So I think it would be very difficult for us to estimate with a specificity exactly what the losses might be. Before we decided that we would take no further action than to support the Fed's conformance period, we looked at sort of worst case scenarios and believe that there would not be any significant impairment to any institutions' capital, at least in the national banking system, or to their earnings. And so, that is why we decided that this was consistent with safety and soundness. But again, it really depends upon on what the market reaction is going to be once the banks start to sell these, or as they run off. Mr. Alvarez. I have nothing to add. Mr. Foster. Okay. Mr. Alvarez, on page eight of your written testimony you mention that the Federal Reserve is consulting with the FDIC on a regulatory proposal that would require the largest, most complex U.S. banking firms to maintain a minimum amount of outstanding, long-term unsecured debt, in addition to the regulatory capital that they are already required to maintain. This is to facilitate the single point of entry resolution of these firms. Now, would this apply to all SIFIs or just banks? Mr. Alvarez. That is part of the discussion, how far should it apply--whether it should apply just to the largest banking organizations or it should apply to SIFIs as well. Mr. Foster. Yes, and would there be restrictions on who could hold this long-term debt? For example, could one SIFI hold-- Mr. Alvarez. That is a part of the discussion as well. Mr. Foster. Okay. And how does this relate to the contingent capital discussions that I take it are also ongoing? We have been promised many times that well, we are in the process of thinking about contingent capital, it is getting closer. And I was wondering what your view was of the status of contingent capital. As you are well aware, the European regulators are far ahead of us on contingent capital and it seems to be fairly successful. Mr. Alvarez. This is slightly different. The contingent capital is free-- Mr. Foster. Right, it triggers--obviously, there is a regulatory trigger, not as a part of resolution. Mr. Alvarez. Correct. Mr. Foster. Could the mechanisms be similar--the conversion of debt to equity under prescribed conditions. And so would this be higher--or above or below in the capital stack of these firms--the additional-- Mr. Alvarez. I don't know the answer to that question. It is meant to be complementary. It would be after resolution-- useful mostly after resolution rather than the convertible securities, as you point out, which is--convertible debt, which is mostly before. We are participating pretty actively in the international discussions. We think that is a fruitful way to consider the convertible instruments because it depends--the trigger there becomes a very important factor. And so should the trigger be a regulator, should it be a market event? Should it be a home regulator, post regulator? There are lots of variables there. It is a much more complicated instrument than the long-term debt. Mr. Foster. Thank you. Is there a schedule for that? Do you have any idea when we will actually see a concrete proposal so we will be able to say what the trigger mechanism--the preferred trigger mechanism is? Mr. Alvarez. I don't have a concrete date for you. It will be soon. It will be something, though, that we will be very interested in public comment on because this is a very important effort, we think. Mr. Foster. Okay. Thank you. That was my last question. I yield back. Mrs. Capito. I recognize Mr. Royce, the Chair of the House Foreign Affairs Committee. Mr. Royce. Thank you, Madam Chairwoman. I wanted to ask Mr. McKenna a question. It is about a piece of legislation that I and Jared Huffman introduced, the Credit Union Residential Loan Parity Act. And what that bill does is to remove non-owner-occupied one-to-four-unit dwellings from the calculation of the member business lending cap currently imposed on credit unions. And this reform really has two advantages in terms of increasing the capital available to lend to small businesses and the availability of needed rental housing as a consequence if this change was made. And I was going to ask you, Mr. McKenna, does the NCUA have any comment on this legislation? Mr. McKenna. The agency has reviewed that piece of legislation and we do not have any safety and soundness concerns with it. Mr. Royce. Could you pull the microphone a little closer? Mr. McKenna. We have reviewed that piece of legislation and we do not have any safety and soundness concerns with it. Mr. Royce. You don't have any concern about safety or soundness from that standpoint? Mr. McKenna. Not with that piece of legislation, no. Mr. Royce. I appreciate that very much. I also wanted to ask you, on a related note, the NCUA has put forward a new proposed risk-based capital rule for credit unions over $50 million in assets, and I am concerned that risk weights applied to residential mortgage loans and member business loans under the proposal do not actually reflect the risk nor are they comparable to the system for community banks. And I will just give you an example. If you look at the delinquency rates, first of all, on these loans from the latest data available, credit unions have delinquency rates which are one-quarter to one-half that of banks. The proposed rule would apply risk weights that are double the comparable Basel weights. And that is the thing that stands out to me--the rate being double. Why does the proposed rule regarding risk-based capital deviate so much from the FDIC standards for community banks? That was what I was going to ask you. And do you have concerns that these risk-weightings could hinder credit union lending to homeowners or small businesses or even churches? You have these niches out there and this would be quite a change. But I would like to explore that with you. Go ahead. Mr. McKenna. As you pointed out, it is a proposed rule that we issued in January of this year. The comment period closes in May. We have already received lots of comments on the risk weights and that is something that the NCUA board is going to be looking at. The basic thrust of your question was whether our rule is comparable to the FDIC's rule. And in general, taking into consideration the unique nature of credit unions and other factors, we think it is comparable to the FDIC rule. However, we are reviewing the risk weights to see if they make sense to credit unions. Mr. Royce. Yes, because the data behind those delinquency rates--one-quarter to one-half--if you look at the September data, it shows real estate loans last September--a delinquency rate of 1.22 versus 4.77. If you looked at commercial loans, it would be 0.35 versus 0.55. So the part that just stands out is if you end up with double the rate then the question is, do you end up sort of shorting capital that otherwise would be available for small business lending and so forth. So my hope would be to work with you--we have a good working relationship--as we go forward to try to make certain at the end of the day we don't disproportionately impact capital that otherwise would be available for either home ownership, small business lending, and so forth. Mr. McKenna. We hope to work with all stakeholders to make the final rule more effective. Mr. Royce. Thank you very much. And Madam Chairwoman, again, I appreciate it. Mrs. Capito. I now recognize Mr. Sherman from California. Mr. Sherman. Thank you. I would like to pick up on Mr. Royce's questions. I am also concerned about these rules on credit union capital. As I understand it, it would impose a Basel-like capital regime on those who already face stringent capital requirements. And I will ask Mr. McKenna, it seems that the rule provides for tougher rules for credit unions than are applied to community banks under the Basel system even though credit unions have historically been even more risk-averse. Are the rules tougher than that are imposed on community banks? Mr. McKenna. Congressman, some of the risk weights are different than the ones that the FDIC has. Mr. Sherman. And I hope you would take into account the fact that the number one problem that small businesses, I think, have in all our districts is they can't get capital. They can't get a loan. We had Jamie Dimon in here saying he couldn't find U.S. businesses to lend money to, so he sent the money to London where it was eaten by the Whale. Every one of us here could list a hundred businesses that can't get business loans, and so I hope you would take that into account in determining what weights should be applied. Supplemental capital is an issue that credit unions have been concerned about. They would like the authority to pursue supplemental capital, since their tier-one capital is generally now limited to retained earnings, and of course they cannot, will not issue stock. I believe your agency has indicated support for supplemental capital, which credit unions can't use for leverage ratio purposes without a change in the Federal Credit Union Act. Why isn't your agency coupling its support here in Congress for supplemental capital for tier-one purposes with the risk-based capital proposal? Mr. McKenna. As you point out, it is currently a proposed rule, and the issue of supplemental capital will be something that we look at when we finalize the rule and listen to the comments. Mr. Sherman. So you may be putting the two together? Mr. McKenna. It is a possibility. Mr. Sherman. Okay. Now I would like to shift--I know a number of my colleagues have talked about this ``Operation Choke Point.'' I would ask unanimous consent to put in the record an article by William Isaac entitled, ``DOJ's Operation Choke Point: An Attack on Market Economy.'' Mrs. Capito. Without objection, it is so ordered. Mr. Sherman. Thank you. I guess, Mr. Osterman, you have said that you are cooperating with DOJ on this. Is it being limited to--are you trying to choke off entities that had been indicted or convicted of crimes, or what is the target of Operation Choke Point? Mr. Osterman. Congressman, I am really not in a position to answer that because it is not an FDIC program. Again, we have been providing information to the Justice Department for their actions, but we-- Mr. Sherman. Okay. But it is your examiners that are putting the pressure on banks to do to certain U.S. businesses what I spend most of my time trying to get done to the government of Iran, and that is deny them access to the U.S. banking system. Are your examiners pushing banks toward cutting off any U.S. businesses that are--particularly those engaged in consumer credit? Mr. Osterman. The answer to that is no. What we have-- Mr. Sherman. So we wouldn't hear testimony from those who deal with your bank examiners saying that they were told, ``Well we are going to look at you more carefully unless you cut off this-or-that business?'' Mr. Osterman. As I have said before, we have actually put out a policy statement on this issue to make it very clear from the very top that as long as financial institutions are properly managing their relationships and the risks, they are neither prohibited nor discouraged from providing these services. And we have actually had the head of our examination staff talk with our regional offices and our field offices about this. And so, to the extent that this message isn't getting through, we are certainly happy to hear it and try to get that message correct. Mr. Sherman. I think you need to get the message through. And, Ms. Fuchs, I look forward to your agency regulating properly consumer lending, rather than having-- Mrs. Capito. The gentleman's time has expired. Mr. Sherman. --this get done behind the scenes without the Administrative Procedure Act. I yield back. Mrs. Capito. Thank you. Mr. Pearce is now recognized. Mr. Pearce. Thank you, Madam Chairwoman. And I thank each one of your for your presentations today. Ms. Fuchs, you had mentioned that you are hard at--the CFPB is hard at work making sure that consumers have better information for making financial decisions. Later, you pointed out that you are required to consider rural areas. Again, I point it out every time I have the opportunity with someone with your agency that you--your original definitions of rural versus urban put 2 counties, one of 8.5 people per square mile that compares to 70,000 per square mile in New York. You would lump them together. And then the other one is 6 people per mile, and the one with 6 people per mile has a per capita income of about $25,000. So I am not sure exactly how that is that you are going to give consumers better information when you have missed the mark that far. I know you have done a 2-year study, but I don't know many institutions will go in to lend money for the long term based on 2-year changing regulations. I don't really have much belief that I would get different answers than I have gotten before so I will just add a quote from one of the bankers talking about being hurt by the real definition, which lets you know how you are cutting against the grain, really not providing the security and not providing what it is that you declare in your statement. A small banker in Alamogordo, New Mexico, says, ``If I stop lending--he is being hurt by this rule definition--my community will not have a bank to meet their needs. I am a small bank investing private capital to service micro needs. Wells Fargo won't make a loan for an ice maker for a small business in New Mexico but I will.'' And that is the sort of thing that we run into. And another comment is regarding the purchase of trailer houses, mobile homes, manufactured houses, whatever category you put it in, and it appears the CFPB doesn't declare that to be quite up to the standards that you would like. So your positions on qualified mortgages and also balloon loans make it very hard for consumers to borrow money for manufactured housing. And yet, that is 50 percent of the housing in my district, and so you are doing exactly the opposite of what you declare, just as a point of reference so you can go away and know that I have at least said it. Mr. Osterman, I was actually intrigued by your comments. As Mr. Westmoreland was wrapping up, you were talking about Operation Choke Point, and do you all--as you are going in there, you said that it is against some State laws. Do your regulators know all 50 State laws? Do you differentiate? Tell me a little bit about how you avoid getting into areas where that is legal and those where it is not? Mr. Osterman. Again, what we do is supervise our financial institutions, and our efforts are not targeted at legitimate businesses operating in compliance with the law. So our efforts are focused on making sure our institutions are being run in a safe and sound manner and that if there--and I think there is a recognition that there are certain types of-- Mr. Pearce. I understand that there are certain types of things that are wrong, so do you bring criminal investigations? It says in an article that you bring criminal investigations-- you, DOJ, FTC, USPIS, and FBI, and it includes the FDIC there. So you would bring criminal investigations too? Mr. Osterman. We would not be involved in criminal investigations--if we see criminal activity, we would make a referral to the Department of Justice-- Mr. Pearce. You would make a referral when somebody gets so far out of bounds? There are things that abridge the law and abridge the themes of common decency. Mr. Osterman. If there is illegal activity, we will make-- Mr. Pearce. Yes. I guess that would bring me to my point-- my recurring point with the FDIC is that you all had a supervisory role over MF Global, and yet no criminal charges were brought. That was $1.6 billion taken from customer accounts illegally. The Huffington Post said, ``The lack of charges add to the government's sad track record of toothlessness since the financial crisis.'' And later in that article it says, ``Apparently MF Global didn't intend to take money from clients.'' Now, I was not aware that intention was exactly the best decider, so we continue to see that certain scale of institutions, certain connected institutions are targeted and others don't even get criminal charges. I yield back my time. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Washington, Mr. Heck, for 5 minutes. Mr. Heck. Thank you, Mr. Chairman. I would like to take this opportunity to extend my congratulations and welcome to my friend and colleague, Mr. Horsford, who has joined us. I can state unequivocally that there is not a single member of this committee happier than me that there is somebody less senior than I am. [laughter] I would also like to congratulate him on the fastest and shortest brevet promotion to ranking minority member in the history of the community. Ms. Fuchs, you have come in for some criticism today and before--some warranted, some I suspect not so much. One area where you are generally not criticized at the Bureau is the manner in which you deal with servicemembers through Ms. Petraeus' office. I never miss an opportunity to congratulate the work of the agency in that regard. Also I think, generally speaking, people extend to you plaudits for the way in which you have, generally speaking, listened. You, I mean, of course, figuratively. Lots of stakeholders from our district may be critical of final rules, but most of what we have heard for the last year or two is, ``We complained and they sat down and they listened.'' One of the ways in which you are able to do that with respect to consumers and banks and credit unions is you actually have advisory boards that kind of formalize your ability to listen. I would very interested in just a sentence or two about how that makes you better at your job. And secondly--two-part--given that Mr. Pittenger has introduced an outstanding piece of legislation--sir, I compliment you--in the form of H.R. 4383, that would create another small business advisory committee for the CFPB for other entities that you regulate, like appraisers and title insurers, might we look forward to your active support of that to help you keep doing the good job of listening that you have done in these other areas? Your turn. Ms. Fuchs. Thank you so much, sir. I appreciate your comments about the CFPB's outreach efforts, and I should--and we have found that both the Credit Union Advisory Committee and the Community Bank Advisory Committee have been very, very helpful for the CFPB. The CFPB writes rules across the entire financial services consumer finance industry, although we only examine larger banks and nonbanks, and so having those advisory committees has been helpful to us. With respect to the legislation, the CFPB doesn't take positions on pending legislation. I should say, however, as I mentioned earlier, we are the only bank regulator and one of only three Federal agencies that subjects itself to the small business panel requirements, and we have found that extremely useful, and our economists would say it has been very valuable to hear from small businesses who would be affected by rules that we are planning to propose directly about those proposals. And so that has been a very, very useful process. Thank you. Mr. Heck. Thank you. And my compliments again to Mr. Pittenger, for the legislation. Mr. Osterman, it is axiomatic that piles of cash are an inherently bad thing. I am just finishing up watching the Breaking Bad series and there is that scene in the storage room where the six-foot-by-six-foot-by-four-foot pile of cash is kept in the little room. There is nothing good about that; nothing whatsoever. And that is why, sir, Mr. Perlmutter and I have been working so hard and so aggressively with Treasury and the Financial Crimes Enforcement Network (FinCEN) to issue guidance with respect to providing access to banking services to legally constituted marijuana businesses in Colorado and Washington, because it is a public safety issue. Because we have to keep marijuana out of the hands of children and we have to keep cash out of the hands of gangs and cartels. And, sir, Happy Valentine's Day. On that very day, FinCEN did issue guidance. Please tell us how your agency will now take that work to the regional level and to the examiners so that they can provide the necessary implementation advice and guidance and get on with this in the interest of public safety. Mr. Osterman. Congressman, we expect the banks to follow the FinCEN guidance, including the new guidance that has been issued and its new SAR requirements for marijuana-related businesses. But at the end of the day, it is up to the bank to accept the business as a customer after weighing the risks associated with the customer relationship. Mr. Heck. I understand that. The question is, what have you done now to take that guidance regionally to your examiners and say, ``Here is our new guidance, that if you instruct things to operate within this, that is acceptable.'' What have you done to take the next step? Mr. Osterman. Again, the examiners are aware of the FinCEN guidance. It is up to the bank to make the call as to how it is going to operate. Mr. Heck. Thank you, Mr. Chairman. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Florida, Mr. Posey, for 5 minutes. Mr. Posey. Thank you very much, Mr. Chairman. Thank you all for appearing here today. Mr. Alvarez, I would like to state a few facts, as I understand them, about the Volcker Rule and how it was adopted. Let me assure you that when I am finished, you will have more than adequate time to explain. Dodd-Frank codified the Volcker Rule as 12 USC-1851. As I believe Mr. Garrett alluded to, Section 18-51G specifically states that the rule does not prohibit any bank from securitizing a loan. Now, when the proposed Volcker Rule regulations, 76 CFR 215, were issued on November 7 of 2011, there was no discussion as to whether collateralized debt obligations (CDOs) and collateralized loan obligation (CLOs) would be considered proprietary trading. In fact, sub-part A of Section 13 specifically said that securities consisting entirely of loans were not proprietary trading. Yet, when the financial regulations were issued on December 10, 2013, regional and community banks suddenly discovered that regulators had, in fact, made significant changes to the treatment of CDOs and CLOs and that the banks would have to get them off of their books in less than a year. Given the industry's surprise with the final rule, I am trying to understand how this regulation morphed from the proposed rule to the final one, because there appears to be something seriously wrong here. Furthermore, the financial industry submitted more than 18,000 comments during the notice and comment period for the proposed regulations. Yet none of them raised a concern as to how CDOs and CLOs would be treated. That tells me that if an important piece of regulation receives no public attention during a comment period but a great deal of attention afterwards, you have to wonder whether the proposed rule was, in fact, adequately, fairly, and reasonably described when given for public comment, if it was described at all. So my question to you is, would you please give me a specific citation in the proposed rule where the treatment and CDOs and CLOs were set out? Mr. Alvarez. The proposed rule had something on the order of a dozen questions about asset-backed securitizations, including CDOs--asked about how the ownership interest should be defined, how the instrument should be treated under the Volcker Rule. As you pointed out, the proposal and the final rule both exempt asset-backed securitizations that are backed entirely by loans. The issue is a very small number of banks own CLOs that are not backed entirely by loans, that indeed are backed by loans and other securities that are not loans. As I mentioned, there seemed to be about 50 banks in that group. I think that may explain why there was no comment received on it. It is a very small universe of institutions that are affected by this among the thousands that are affected by the Volcker Rule. We have acted in a way that gives these institutions extra time. They have an opportunity to conform the investment in a variety of ways, short of divestiture. Some may choose to divest. As I mentioned, at least half of the CLOs are going to mature on their own terms during the period of time that we have given the institutions. So this problem is one that is very, very small. Mr. Posey. So you are telling me that securities, consisting entirely of loans, are not proprietary trading then. You are telling me absolutely, unequivocally, without any shadow of doubt, that they are being treated properly. If they are entirely consisting of loans, then they are not considered proprietary trading, correct? Mr. Alvarez. If I could make a small modification of what you are saying, there are two restrictions in the Volcker Rule: one on proprietary trading; and one on ownership of covered funds. The issue you are raising is about the ownership of covered funds. And, yes, it is true that if it is an asset-backed securitization entirely by loans it is not a covered fund and is not covered by the Volcker Rule. Mr. Posey. Thank you. I will hold you to that. Thank you. Thanks, Mr. Chairman. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentlemen from Nevada, Mr. Horsford, for 5 minutes. Mr. Horsford. Thank you very much, Mr. Chairman. First, I want to thank the witnesses for being here today and for providing so much valuable information and expertise on this subject. I started my service here in Congress on the Oversight and Government Reform Committee, where I learned to value the assessment of the U.S. Government Accountability Office, so I want to start with a 2013 GAO report entitled, ``Financial Crisis Losses and Potential Impacts of the Dodd-Frank Act,'' and I would like to ask unanimous consent to enter this into the record. Chairman Hensarling. Without objection, it is so ordered. Mr. Horsford. Thank you. The GAO report noted that, given the tremendous cost associated with the financial crisis, reforms only have to reduce the likelihood of another financial crisis by a very small percentage in order to offset the cost to the industry. The GAO identified as much as $13 trillion lost in economic output and $9.1 trillion in wealth lost by U.S. homeowners. As a resident of Nevada, I can tell you when I go back home to my district, I see the devastating impacts and toll that the housing crisis took on our constituents and the people throughout our State. Now, no one supports excessive, burdensome regulations. But we also need appropriate regulatory oversight to both protect the good industry players from the bad actors as well as to help consumers who need a fair playing field in which to operate. So my question is for the panel. Mr. Alvarez, what efforts does your agency undertake in attempting to reduce any unnecessary burden when creating new rules and regulations, and what processes and procedures are in place for you to honor that commitment? Mr. Alvarez. As I described in my testimony, the Federal Reserve meets with affected parties in advance of designing rules in the most significant cases. We seek public comment in all of our rulemakings, including public comment on alternative approaches, on ways to reduce burden, we invite comment on the cost and burdens of the rule that we are putting forward. And so, we follow that process. In addition to that, in order to ensure that there is input from community bankers in particular, we have set up various councils across the Federal Reserve System--one in each of our 12 districts--with representatives from the local banking communities to inform us of the costs and burdens of the rules we are putting forward. Then representatives of those councils meet with our Board of Governors here in Washington and pass on those concerns and have a chance to input their own concerns. So we do quite a lot of outreach, and we do quite a lot of work with institutions to try to make sure that within the bounds Congress has set for us in the statute that we are implementing, we adopt alternatives that are the least burdensome. Mr. Horsford. So, Mr. Osterman, how, then, do you get feedback from both the industry and consumer side? Is it balanced? And fundamentally, is it different from the way past Administrations have approached that input? Mr. Osterman. We seek notice and comment, as Mr. Alvarez has stated. We also will seek input even before rules are promulgated, on occasion, to get input. But certainly as we go through that process and we issue the notice of proposed rulemaking, we get the comment from the industry. We look at ways to minimize-- Mr. Horsford. What about consumer groups? Mr. Osterman. --the burden, and consumer groups are part of those groups that do provide us comments. And really, I don't think it is any different from the process that has been in place for many years under the Administrative Procedure Act. Mr. Horsford. Okay. Ms. Fuchs, how do you also obtain the perspective of communities like mine that have been heavily and disproportionately impacted by the failure of a lax regulatory oversight that helped contribute to the loss of so much wealth for average, middle-class homeowners? Ms. Fuchs. The CFPB is very conscious of the history that led to the creation of the Bureau, and in our work, in addition to some of the formal procedures I talked about in my written testimony, the Bureau has engaged in very, very regular interaction across the country with all sorts of communities. Virtually every month, we do a field event in a different State across the country. And while we are there, in addition to a public hearing, we also meet with community groups, community bankers, and credit unions. Mr. Horsford. Thank you. Thank you, Mr. Chairman. I look forward to continuing to work on these issues. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Missouri, Mr. Luetkemeyer, for 5 minutes. Mr. Luetkemeyer. Thank you, Mr. Chairman. Mr. Osterman, my first comments or questions would be to you. A couple of times today you have already mentioned that, with regards to Operation Choke Point, the FDIC was working with DOJ and providing some information. Are you aware that the Division of Depositor Consumer Protection actually loaned two attorneys for a period of time to Operation Choke Point? Mr. Osterman. No, I am not, sir. I don't believe that is correct. Mr. Luetkemeyer. I have a copy--or I am aware of a copy--of an internal memorandum that was produced for Chairman Issa that confirms that fact. And in talking with some of the executives at the FDIC, they confirmed that fact, as well, to me last week. So knowing that, and putting that fact before us here, I thought the mission of the FDIC was to work and be concerned with the--to ensure the safety and soundness of an institution. How do you rationalize loaning two of your examiners to the DOJ for Operation Choke Point, whose sole purpose is to run the non-deposit lenders out of business, a safety and soundness issue for the FDIC? Mr. Osterman. Again, I am not aware of that. But assuming you are correct in terms of what you are proposing here, as I have indicated before, our efforts aren't targeted at legitimate businesses. What we are looking at is making sure our banks are running in a safe and sound manner. In terms of the Department of Justice, if they are involved in trying to stop illegal activity and they seek our assistance, we generally would provide assistance to them so that activity could be addressed. Mr. Luetkemeyer. Mr. Osterman, I used to be an examiner as well. I am still involved at arms length, probably, at a community bank as well. So I have been on both sides of the table on this issue. I understand what goes on. But by the same token, I am not supporting those entities that are illegal or are doing illegal things. I support any activity that you engage in to get those--to ferret those out and get rid of them. The problem is we are going the wrong direction. We have allowed the pendulum to sway way too far. Operation Choke Point is a perfect example of regulatory stuff going amuck. I have here an excerpt from a letter dated February 26, 2014, from a banker to one of these nondeposit lenders closing his account: ``We are unable to effectively manage your account on a level consistent with the heightened scrutiny required by our regulators for money service businesses.'' Now, this is after the fall policy statement that you made. This is still going on. What is heightened scrutiny? What are they referring to? Mr. Osterman. I am not quite sure what they are talking about. I can tell you that our efforts are focused on making institutions aware of risks that can be involved. But as long as the institutions are managing those relationships and the risks, they are neither prohibited or discouraged from providing those services. So-- Mr. Luetkemeyer. Mr. Osterman, we have a statement from one of your examiners that says that he doesn't believe that non- deposit lenders have a moral right to exist. That is completely out of line. Your agency has no right to make that judgment on any business. Not only do we have a shadow banking system, we seem to have a shadow regulatory system as well. If you have regulators out there who are working in cahoots with the DOJ, who are still being punitive with regards to my letter of February 26th, after your stuff, and the moral judgment statement that is made, something has to change. Would you be willing to work on and put in place a safe harbor for these non-deposit lenders? Mr. Osterman. I think that it is up to the non-deposit lenders to basically create a situation where the banks can be comfortable with the fact that they are being operated in a way that is not illegal or creating high risk to the institution. Mr. Luetkemeyer. Mr. Osterman, you are regulating these entities. You are the one who is coming down on the banks and saying, ``Don't do business with these.'' My banker association was in just a couple of weeks ago, and one of them made the comment that, ``I was doing business with one of these non-deposit lenders and I went by--and I will still--there was no problem with them, but the FDIC kept nitpicking me to death and I just finally got rid of them, and suddenly all my problems went away.'' That has to stop. I think these folks need a safe harbor where you will give the banking industry a way to work with these folks and protect them from your operation. Do you agree? Mr. Osterman. I think there needs to be dialogue here so that we can understand what the issues are and try to address them. Mr. Luetkemeyer. Okay. Quickly, Ms. Fuchs, I am very concerned because the CFPB is about ready to jump in this area as well with your rules. Mr. Cordray was in front of this committee not too long ago, and he made a statement to me that he agreed that non-deposit lenders have a space that they need to be in and he would support them. On April 25, 2012, he also said the CFPB is not in the business of product banning. I am going to be watching very carefully to see how you address that position of your Director and still allow these entities to exist. Thank you, Mr. Chairman. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Wisconsin, Mr. Duffy, for 5 minutes. Mr. Duffy. Thank you, Mr. Chairman. Mr. Alvarez, are you aware of whether the Fed is required to open up their advisory committee meetings to the public or to Congress? Mr. Alvarez. The Federal Advisory Committee is a statutory organization and is not required to be open to the public. Mr. Duffy. Do you know why not? Mr. Alvarez. It allows the members of that committee--which are representatives of the banking industry--to give their candid views to the Board on monetary policy and on supervision. Mr. Duffy. So it is monetary policy issues that come up that require some secrecy about what the Board is doing, right? Mr. Alvarez. Correct. Mr. Duffy. Okay. Does the CFPB have a seat at the table talking about monetary policy? Mr. Alvarez. No. Mr. Duffy. No. Ms. Fuchs, is it your position that the CFPB is not required on the FACA to open up their meetings to Congress or the public? Ms. Fuchs. The CFPB is an entity within the Federal Reserve System, and the Federal Advisory Committee Act (FACA) does not require the entities of the Federal Reserve system to comply with FACA. Mr. Duffy. This is the Federal Reserve System, right? So you are saying that you are an integral part to the cause and the reason why the Fed is exempt, which is setting monetary policy? Ms. Fuchs. No, I am talking simply about the way the law is structured. I am not talking about the reason that Congress put that in place. Mr. Duffy. So are you prohibited from opening your meetings up to the public or to Congress? Ms. Fuchs. With respect to the Consumer Advisory Board, the Bureau has certain sessions that are open to the public and I am aware that-- Mr. Duffy. Listen to the question. Are you prohibited at the CFPB from opening up your meetings to the public? Ms. Fuchs. We are not prohibited. Mr. Duffy. So you can open them up if you want to; you just choose not to. Ms. Fuchs. The Bureau has certain meetings which are open to the public-- Mr. Duffy. That is not my question. You choose to shut down some of the meetings, right? Ms. Fuchs. And it is my understanding, as well, that members of the committee staff have attended those public meetings. Mr. Duffy. And those meetings aren't discussing monetary policy, right? Ms. Fuchs. Not that I am aware of. Mr. Duffy. And those aren't meetings discussing covert operations in the CIA as well, right? Ms. Fuchs. Not that I am aware of. Mr. Duffy. Okay. I have a riddle for you: What do tap water, your glasses, and the Consumer Financial Protection Bureau all have in common? Ms. Fuchs. I do not know. Mr. Duffy. You don't know? There was a blog 3 years ago, April 6, 2011, on the CFPB Web site, and the answer is, they are all better when they are transparent. Dirty glasses are annoying, dirty water is annoying, and a dirty CFPB is really annoying. And if you are not transparent, which you have claimed the CFPB would be and you are not, that is of great concern to this committee. Look--the Credit Union Advisory Council meeting. No agenda. No notice of meeting. And a six-page summary of just glossary facts of what took place. You have a Community Bank Advisory Council meeting. No agenda. Nine pages of very glossary ideas of what took place in the meeting. The FDIC--Mr. Osterman--they have a similar meeting and they give an agenda; they give 20 pages of pretty detailed summary of what takes place in the meeting. And you are talking about the same issues. FDIC--full disclosure with an agenda. CFPB, not at all. You look at the Academic Research Council--no agenda. Do you know how long the minutes were from that meeting? It was two pages, one was a cover page and the other was barely a paragraph from the minutes. And the CFPB comes in here and says, ``We are open. We are transparent. We want to disclose.'' I would suggest that you use your discretion and you open up these meetings. Let us see what kind of advice you are getting, and who is giving the advice. I think that would serve the CFPB well, it would serve this committee well, and it would serve the public very well if you did that. I would just note that the Credit Union Times, on September 26, 2013, in an article said, ``Give public access to more of its meetings and hearings to increase transparency.'' And that was in relationship to the CFPB. If you want to get buy-in from this committee, your lack of transparency in the face of all the claims that were made about how transparent you would be with little cute jokes and blog posts about how wonderful it would be at the CFPB, you haven't met the standard. You haven't met the standard that was set by Elizabeth Warren. Also in that same blog post it said, ``Last month we blogged about our commitment to making sure it is always sunny at the CFPB.'' Ms. Martin, in her testimony last week, I am sure she would say, ``It is not always sunny at the CFPB.'' I think she actually testified, ``It is a nightmare at the CFPB.'' Let's open it up. Let's air it out. Let's have the transparency that you all promised. I yield back. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentlemen from New York, Mr. Grimm, for 5 minutes. Mr. Grimm. Thank you, Mr. Chairman. I would like to follow up where Mr. Luetkemeyer left off, with Mr. Osterman. This Operation Choke Point gives me tremendous concern because it can certainly be Federal agencies like DOJ and others using a cloak of law enforcement to weed out and combat fraud and intentionally harming lawfully operating businesses. Listen, anyone who is not doing the right thing, not following the law, we have to get rid of them. But you can't put the standard of ``guilty until proven innocent.'' And in your last comment you said that these payday lenders and store fronts, non-deposit lenders, they have to meet this heightened standard, which means they are already assumed guilty. That is not how this works. I just want to be clear: If payday lending is going to be deemed illegal, the Congress will say so, not your agency. Are we on the same page there? Mr. Osterman. Yes. Mr. Grimm. Okay. Because it doesn't seem that way. My understanding is the FDIC has a list of businesses that are on a heightened scrutiny list. That, in and of itself, causes me some concern. My question is, I understand that if the DOJ requests your assistance you are going to give that assistance. Has anything about Operation Choke Point caused you concern enough to maybe ask some questions of DOJ and say, ``Hey wait a minute, you know, we want to be helpful but we may be breeching our own fiduciary responsibility?'' Is there anything that has given you concern about Operation Choke Point? Mr. Osterman. We have operated entirely consistent with our statutory mission in providing assistance to the Department of Justice-- Mr. Grimm. But my question wasn't whether you were within your statutory obligations. My question was, has there been anything that has given you concern? Has there been anything that has given you concern where you think maybe something isn't appropriate, that you may be overstepping a line? Mr. Osterman. To the extent that we understand DOJ is seeking to stop illegal activity, there is not anything inappropriate there. And in fact, you talk about this list of high-risk activities. That is a list that the payment card industry has created themselves. It was a list that we put in our Supervisory Insights Journal a few years ago. And it basically is a list of high-risk activities that tend to have a higher incidence of fraud or illegal activity associated with those, so-- Mr. Grimm. Let me ask you this question. Let's talk about civil investigative demands (CIDs) for a second. It has been reported that at least 50 banks and third-party payment processors have been given these CIDs as part of this operation. Before issuing a CID, does the FDIC--do you request of DOJ that they give you any type of information to ensure that it is credible and that it is a reasonable cause to conclude that there was a substantial likelihood that the targets had, in fact, engaged in some kind of fraudulent activity? Mr. Osterman. I am not familiar with the CID acronym, but to the extent that DOJ is doing an investigation, that is their investigation. We have been--we would provide them, respond to questions, that type of thing, but that would be their investigation. I don't think they would come to us on that. Mr. Grimm. I just want to be clear then, whatever DOJ asks for, the FDIC provides without asking any questions. You don't do any internal investigation of any sort, so whatever DOJ asks for, you pretty much provide? Mr. Osterman. No, I don't--that is not correct. It would have to be a legitimate law enforcement activity that we would be supporting DOJ on. We would cooperate--we cooperate with other agencies as well in ensuring that the statutory mission of the agency is fulfilled. Mr. Grimm. As far as you know, the coordination involvement, does it involve any attorneys general from other States with Operation Choke Point? Mr. Osterman. I don't know the answer to that question. Mr. Grimm. How about any other consumer advocacy groups? Has there been any communications or involvement with consumer advocacy groups? Mr. Osterman. Again, I am not aware of the answer to the question. Mr. Grimm. I am asking specific with the FDIC, not with DOJ. Mr. Osterman. Right. Mr. Grimm. As far as you know-- Mr. Osterman. Right. I am not aware of it myself. Mr. Grimm. You are not aware of any? Mr. Osterman. No. Mr. Grimm. Okay. I yield back. Thank you. Chairman Hensarling. The gentleman yields back. The Chair now recognizes the gentleman from Ohio, Mr. Stivers, for 5 minutes. Mr. Stivers. Thank you, Mr. Chairman. I really appreciate you holding this hearing. And I appreciate the witnesses being here and their time. We are in a difficult time in this economy. There are still a lot of jobs that need to be added, and the way you have to add those jobs is you have to figure out how to finance that growth of our economy, and the financial sector has done that. I am really concerned about a couple of things that I want to talk about and ask some questions about. The Operation Choke Point really has me worried about the overreach of government and government shutting down properly licensed State businesses with which they just don't agree. And it gives me cause for concern about other businesses, whether they be opposed by folks on the left or the right. Government can really abuse its power and it really worries me. I have a testimonial from an Ohio-based company that has had a 20-year partnership with a financial institution, and with no warning they got a call just a few weeks ago and the bank is going to terminate their banking relationship after a 20-year relationship because of reputational risk. And that reputational risk is driven by our regulatory policy and regulatory pressure, and I am really worried about that. So I want to ask the FDIC whether, Mr. Osterman, you believe there should be a safe harbor? I know somebody has brought this concept up to you, but why shouldn't State- licensed businesses have a safe harbor to know that they are going to be able to keep their relationships? Mr. Osterman. I think as long as you have a situation where the entity is operating in a legal fashion, that should take care of addressing the issue. What we have seen in the past is there are certain types of businesses that have been viewed as high-risk by the payment card industry and others because of the higher incidence of fraud or illegal activity, and to the extent that-- Mr. Stivers. Sure. And I just hope your agency will put in writing what you just said, that if you are operating under a State license legally, that you--that is a safe harbor. So I would ask you to go back and put that in writing. One question for Mr. Alvarez, and I know this has come up already, on CLOs. Can you tell me where in Dodd-Frank you don't have the power to grandfather CLOs? Because a 2-year extension and a grandfathering aren't that much different except a grandfathering would allow those entire portfolios to run off in their fairly shortened duration. So can you help me understand? Can you cite the section or the page number of Dodd-Frank that doesn't give you the authority you claim you want? Mr. Alvarez. I can't cite the page number or the section but I can tell you what it says. There is a provision in the Dodd-Frank Act that says all investments and activities by banking entities must conform with the requirements of that section by the effective date, which is July 21, 2014, unless the Federal Reserve Board provides an extension. Then the statute goes on to say the Federal Reserve may provide one extension at a time for a cumulative amount of no more than three extensions. Mr. Stivers. Okay. So that seems pretty clear to me how long these CLOs are. You could have made the extension an essential grandfathering by looking at the term. These things run off in 3 to 5 years. They are relatively short-term. Why not deal with the whole thing instead of having to take two bites of the apple? It just doesn't make sense. Mr. Alvarez. No, I appreciate that. And I think we would have appreciated the flexibility to be different, but the statute is quite specific. It says that we can grant three, 1- year extensions, but no more than one at a time. And we thought that--so we indicated our intention to grant those extensions. We have already granted one; we did so just in this past December. And we will grant the next two in turn. Mr. Stivers. Thank you. The only thing I would add about that is we have talked a little bit today about uncertainty. When you do multiple extensions and you do them for shorter duration, it adds to uncertainty for these businesses that finance things through CLOs, to the marketplace, and to those financial institutions which need that capital. So I would be concerned about that. One last question for Mr. Osterman: The FDIC approved a bunch of tailored plans at the end of the year for some resolution of some of the smaller banks. Do you think that adds any risk to the system? Mr. Osterman. I am not familiar with what you are referring to--tailored plans? Mr. Stivers. Yes. Mr. Osterman. In connection with-- Mr. Stivers. In resolution. Mr. Osterman. Oh, in terms of the resolution. The-- Mr. Stivers. So you obviously don't think it adds risk, right, or you wouldn't have approved them? Mr. Osterman. The plans were not approved. We are going through a process of reviewing the resolution plans and they have not been approved. They are in the process of being reviewed and it is an-- Mr. Stivers. I know I don't have much time left. When you allow people to submit tailored plans, clearly you understand there is not much risk there, and-- Chairman Hensarling. In fact, the gentleman has no time left. Mr. Stivers. Thank you, Mr. Chairman. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from South Carolina, Mr. Mulvaney, for 5 minutes. Mr. Mulvaney. Mr. Osterman, I don't want to sound like we are piling on here, but for some of us this Operation Choke Point information is just coming to the fore. And I was particularly struck by Mr. Luetkemeyer's opening comments, when he had the letter from the bank to the non-depository financial institution saying, ``Look, you are a good customer; you are doing everything legally; you have been a great customer for a long time, but we just can't do business with you anymore.'' And when you add that to the statements from a bureaucrat, no matter how low-ranking they may be, who says to a particular legal industry, ``You don't have the moral right to exist,'' this is the type of thing that, congratulations, now you have our attention. That is not the kind of thing that goes away, and I hope you send that message back to the FDIC. In fact, I hope that all of you take it to your various agencies. And it is not just that saying it is the problem; it is thinking it that is the problem. The fact that anybody would actually think that in this country, somebody else doesn't have the right to do something that is moral really gets our attention and it is not going to go away anytime soon. Let me ask you, your written testimony lays out, I think, very well the purposes of the FDIC, so you have an ongoing commitment to ensure that its regulations and policies achieve legislative and regulatory goals in the most efficient and effective manner possible. Is it a legislative goal of the FDIC to restrict the legal operation of a non-depository financial institution business? Mr. Osterman. No, it is not. In fact, we wouldn't--we obviously wouldn't be legislating. That would be up to you all, but-- Mr. Mulvaney. Is it a regulatory goal of yours? Mr. Osterman. No. Mr. Mulvaney. Okay. Is there anything inherently unsafe or unsound--you have talked today about your job, which is to make sure that financial institutions are safe and sound and operated in such a manner. Is there anything inherently unsafe or unsound about short-term lending, properly conducted, or non-depository financial lending, properly conducted? Mr. Osterman. Right. If it is properly conducted, it should be fine. Mr. Mulvaney. Is there a value to those services to the market? Mr. Osterman. I believe there is. Mr. Mulvaney. Would removing those services to the market make the market less safe and less sound? Mr. Osterman. Yes. If you don't have the-- Mr. Mulvaney. If Operation Choke Point has the unintended consequence of driving those legal businesses out of the market, would it be incumbent on the FDIC, in order to ensure the safeness and soundness of the markets, to prevent that from happening? Mr. Osterman. We have issued a policy statement that outlines the FDIC's position in connection with this type of activity. Again, our position is that our efforts are not targeted at legitimate businesses operating in compliance with the law. Mr. Mulvaney. You go on to say in your written testimony, and I think, again, it is properly stated, that another critical component of our rulemaking process is to provide the public the opportunity to participate in notice and comment rulemaking, et cetera, which I happen to agree with. Have you ever paid for a witness? Excuse me, have you ever paid for somebody to participate in the audience at one of your meetings? Mr. Osterman. No, not that I am aware of. Mr. Mulvaney. Would it be appropriate for you to do that? Mr. Osterman. I don't know-- Mr. Mulvaney. Would it be appropriate for you to stack the audience? Mr. Osterman. --but it would depend on the particular circumstances of-- Mr. Mulvaney. That should be a fairly safe answer, right? Mr. Osterman, of all the questions I asked you today, that is probably the safest. It is safe to say that is not appropriate, right? Mr. Osterman. I think I know where you are going with this. Mr. Mulvaney. Where am I going with this, Mr. Osterman? Mr. Osterman. I think you may want to ask my colleague the question. Mr. Mulvaney. That is exactly where I am going with this. What were you all thinking? Seriously, to pay somebody to come and participate in the--to plant somebody in the audience? And I know the story that maybe they were going to be on the panel or maybe they weren't. But you all admit now yourself this was wrong, right? Ms. Fuchs. I don't know all the details of how the decisions were made, but it is not our general policy to do that. Mr. Mulvaney. And it is not going to happen again, right? Ms. Fuchs. I would imagine, but I-- Mr. Mulvaney. Would you change your policy, please, on when you release your press statements? Right now, you all don't--you all do what is called ``midnight embargoes.'' You issue something in the afternoon but you don't let people talk about it till after midnight or late at night. Would you change that policy? Ms. Fuchs. We try to release our materials so that the press and other-- Mr. Mulvaney. The FDIC doesn't do that, do they? In fact, nobody else here does that, do they? Yes. Okay. I have 50 seconds left. I have a question for you, Mr. Alvarez, and it is on an entirely different topic. Governor Tarullo was here and we asked him a Dodd-Frank question. I laid out--and I won't have time to give all the details--a specific trade, okay, under the Dodd-Frank prohibitions on proprietary trading. And I said, ``Look, this is the type of trade where it seems that the SEC, the OCC, and the FDIC might all have concurrent jurisdiction.'' And in response to my question, he said, ``No. Whoever is the primary regulator has, by congressional delegation, the regulatory authority over them.'' And when I asked him if they could be overruled by another one of the folks who have jurisdiction, he said, ``No. There is no real shared jurisdiction over a particular trade. There is one regulator on every single trade under Dodd-Frank.'' Does that comport with your understanding of the implementation of that rule, sir? Mr. Alvarez. I think he must have been referring to the fact that-- Mr. Mulvaney. I'm sorry. I said Dodd-Frank. I meant Volcker, and I apologize. But I would love to hear your answer. Chairman Hensarling. Quick answer, please. Mr. Mulvaney. Does that comport with your understanding, sir, of the implementation of the Volcker Rule? Mr. Alvarez. The statute provides that each legal entity is regulated by a particular regulator, and only one regulator. So to the extent--I don't--your question--if your question was about a legal entity doing a transaction, there is only one regulator for that legal entity under Dodd-Frank. Mr. Mulvaney. And they can't be trumped by any other regulator? Mr. Alvarez. Not under the Volcker Rule. Mr. Mulvaney. Thank you, sir. Chairman Hensarling. The time of the gentleman has expired. The Chair recognizes the gentleman from Florida, Mr. Ross, for 5 minutes. Mr. Ross. Thank you, Mr. Chairman. Being from Florida, I had an opportunity when we had our payday lending issues that were pretty bad--and in fact, I was in the legislature at the time and we passed some laws that have become now the gold standard, I think, for all other States to follow with regard to payday lending. So I am really interested in what the Federal Government is going to do when it comes to this industry, and I guess I want to ask the first question of Ms. Fuchs, Mr. Osterman, and Ms. Friend. And following up on what Mr. Mulvaney was talking about, if the regulatory control is so strong to restrict or otherwise cut off the supply, if you will, of payday loans, is it your understanding, then, that the demand would go away? Ms. Fuchs? Ms. Fuchs. The Bureau is looking at payday lending right now and looking at whether rules are-- Mr. Ross. I guess what I am getting at is that we could all agree that if you can--if, through Operation Choke Point and whatever other methods have been out there, to try to prohibit the market from existing, that the demand will still exist, will it not? There will still be people who will need the use of payday loans. Banks don't want payday loans. There is a market niche for payday loans, is there not, Ms. Fuchs? Ms. Fuchs. We understand that there is a need for small- dollar, short-term lending, and the Bureau is very conscious of that and-- Mr. Ross. And, Mr. Osterman, you would agree, too? Mr. Osterman. Yes. Mr. Ross. And, Ms. Friend, you would agree, as well? We have to live with the fact that demand will be there, and if we try to overregulate the supply, there will be a black market for it, which will make matters worse. And I think Mr. Osterman kind of alluded to that when he was answering Mr. Mulvaney's questions. Now, having said that, Operation Choke Point talks about making sure that illegal entities are not given the banking relationships, but has there been any guidance for legal entities in that regard under Operation Choke Point? Mr. Osterman? Mr. Osterman. Again, Operation Choke Point is a Department of Justice action going after illegal activities. What we have said at the FDIC is we are not targeting legitimate business. And all we want is to make sure our banks are running in a safe and sound manner. That is our perspective. Mr. Ross. I appreciate that, but I have had people come to me, bankers come to me-- Mr. Osterman. Yes. Mr. Ross. --recently, within the last month, 2 months, who have been told that because of the--what was it, the relational, reputational risk that they should not be engaged with this particular entity. Now, this is a legal entity. Are you offering any guidance to these banking institutions as to what legal entities are okay with them to operate? Mr. Osterman. We have issued a financial institution letter, which has gone out to the industry, indicating that as long as the bankers are dealing--they do their due diligence and ensure that those entities are operating in a legal manner-- Mr. Ross. And do you give them-- Mr. Osterman. --then that is-- Mr. Ross. --the standards of that due diligence, or is that left open to a-- Mr. Osterman. That is up to them. We are not going to prescribe that. But we also told our regional offices and field offices that as long as people were acting in a legal manner, it is not our job to-- Mr. Ross. For those banks that have been wrongly terminated, in terms of their relationship with legal entities, have you done anything to facilitate the rebuilding of those relationships? Mr. Osterman. This is something that is just happening very recently. Mr. Ross. Yes. Mr. Osterman. Right. And so, we are, again, letting our examiners know what the expectations are. And I think there was an article today in The Banker indicating that the industry itself was looking at how to police itself and create some standards that could be used to ensure that they are operating in a way-- Mr. Ross. That these legal entities are not interrupted with their banking relationships. Ms. Friend, the OCC has been rather quiet on any guidance. Is that a pattern that I think we are to expect or do you expect there to be some guidance with regard to payday lending and Operation Choke Point, for that matter? Ms. Friend. We don't have any guidance on Operation Choke Point. As has been said before, it is a Department of Justice investigation so we are not part of that. We had issued guidance in 2008, and our examiners and banks have been following that. And that basically suggests the banks have to do due diligence when they bank different types of customers. Mr. Ross. And one quick question for Mr. McKenna, because I don't want to leave you out there. I know it has been a little quiet lately. With regard to risk-based capital rules, do you have a timeframe for the implementation of those? Banks have, I think, 1 to 2 years to have it. What do you say-- Mr. McKenna. The comment period currently ends on May 28th, and we will be considering all the comments, and then we will decide on the implementation after that. Mr. Ross. Okay. Thank you. I yield back. Chairman Hensarling. The time of the gentleman has expired. The Chair recognizes the gentleman from North Carolina, Mr. Pittenger, for 5 minutes. Mr. Pittenger. Thank you, Mr. Chairman. Thank you for calling this important hearing. I would like to thank Congressman Heck, my colleague and the esteemed friend that I have who is now serving as a ranking member, for his very kind comments regarding the CFPB Small Business Advisory Council. And I look forward to working with him on the passage of this bill, and thank him for joining with me as a sponsor of this bill. I would like to say that as such, Ms. Fuchs, you all have been able to establish the Community Bank Advisory Council, the Credit Union Advisory Council, and the Academic Research Council, all done without legislative action. I think I am just curious to know why you would not have done this council for the small business, given the critical importance that it plays. Ms. Fuchs. Thank you so much for your question. As I mentioned before, we actually currently have a very, very good means of getting small-business input when our rules are going to affect small businesses. So through our small- business panels, we provide small businesses with information on proposals before we propose a rule. We meet with them-- Mr. Pittenger. But you would agree that these--this council then--formalize this and create a better opportunity for dialogue and input from small business? Ms. Fuchs. The Bureau doesn't take a position on legislative bills. Mr. Pittenger. Thank you. Ms. Fuchs. I am happy to bring back your comments-- Mr. Pittenger. I understand. We moved into a new house 5 years ago and my wife wanted some bushes planted. And we planted these bushes and I got a really fine person out there to help me do it. And in about a year, those bushes died. So we planted some more bushes. And in another year, those bushes died. And then it happened again, and I thought, ``Now, something is wrong.'' So I got another guy out there and he started digging. And he found a lot of red clay--impervious soil that wouldn't let the water go through. And it made me think, all the good efforts of those folks who were planting those bushes was to no avail because those bushes would turn yellow, and they would look bad, and some would die. And they couldn't function. And it seems to me that, although sincerely done and with good intentions, the enormous regulatory environment that we have today is killing the needed growth for our economy. As I recall, back in the 1970s we had very high interest rates, high unemployment--it was a very difficult time. It was called the malaise of Jimmy Carter. And following his completion of his term there was a man elected named Ronald Reagan. And Ronald Reagan came in and he cut all these enormous regulations. And what happened was, in a matter of 2 years we were creating 300,000, 400,000, 500,000 jobs a month. One month, a million jobs. We weren't having an anemic job growth of--or economy of 2 percent. We had about 1.6 percent economic growth. Do you think maybe with all these good intentions, we have created an impervious soil that we can't grow? And do you feel any concern that maybe, although well-intended, the impediments are there--these rules, these regulations, these requirements, the uncertainty in the market because of not knowing what the regulators are going to do next? It seems to me that would be first on my mind to consider that maybe what was intended for good is really meant for bad. Do you have a comment you would like to make on that? Sure, we will start with you, Ms. Fuchs. Ms. Fuchs. We very much share your concerns about regulatory certainty, and that is why we have many means of speaking with industry. At the same time, we also hear from consumers. And through our consumer response function we have received over 300,000 complaints from consumers about issues that they are seeing with their consumer finance activities. And-- Mr. Pittenger. Let me give you one example that occurred in my own town. A wonderful little bank, Bank of Commerce, about a $130 million bank, just announced last month that it had to merge with a larger bank. It could not absorb the regulatory requirements imposed on it--the same requirements of the larger institutions. And now, they have gone out of business. In 2007, we had about, oh, I think 8,500 banks in this country, and now there are about 6,800. That is a loss of 1,700 banks that have either had to merge or they have had to be absorbed. And I just think that there should be some serious consideration on revamping everything that we are doing on our regulatory environment. Thank you. Chairman Hensarling. The time of the gentleman has expired. The Chair now recognizes the gentleman from Pennsylvania, Mr. Rothfus, for 5 minutes. Mr. Rothfus. Thank you, Mr. Chairman. Ms. Fuchs, under analysis done by the CFPB for the QM rule, pursuant to the Paperwork Reduction Act, the Bureau estimated that the compliance burden for the QM rule for one person is only 30 minutes and the estimated burden for each financial institution subject to QM is 1 hour. Do you believe that these are reasonable estimates? Ms. Fuchs. When the Bureau is engaged in the rulemaking, it does whatever it can to get data on the cost and the burden of the rulemaking. We try to understand what institutions do to comply with the rule. In fact, the Bureau has conducted a study about operational compliance activities that banks engage in-- Mr. Rothfus. So do you believe these are reasonable estimates then? Ms. Fuchs. I believe they are reasonable. Mr. Rothfus. Okay. The Paperwork Reduction Act analysis for the QM rule fails to provide an analysis for how the financial institution 1-hour estimate was calculated. Will you commit to providing this committee with a more detailed and thorough analysis? Ms. Fuchs. When we do our Paperwork Reduction Act analysis, we do publish it in our proposal and our final rule. And so we take public comments, which is essentially the way the-- Mr. Rothfus. Again, there was a failure to disclose how you arrived at 1 hour for the financial institution. Will you commit to providing this committee with a more detailed and thorough analysis of that? Ms. Fuchs. I will certainly take back your comments to our economists. We try to do our best to explain both the data we rely on and the methodology in reaching our results. Mr. Rothfus. We are already seeing the first signs that some smaller community financial institutions are exiting the mortgage business rather than trying to navigate the liability risk and excessive compliance costs inflicted by the Bureau's qualified mortgage rule. Indeed, a recent American Banker headline has suggested that QM will come to stand for ``quitting mortgages.'' Ms. Fuchs, how do you reconcile the one-size-fits-all approach taken by the CFPB in promulgating the QM rule with your statutory obligations to promote consumer choice and facilitate access and innovation in the marketplace? Ms. Fuchs. Thank you for your question. The QM rule was specifically designed to consider the differences between smaller lenders and larger lenders, including lenders in rural and underserved areas. We include within the loan specific provisions for small creditors who hold loans within their portfolio. We also have a 2-year window under which small creditors may make balloon loans that are held within portfolio. All of these things are in direct response to comments we heard from smaller lenders about the impact of the-- Mr. Rothfus. Again, does it concern you, though, that entities will stop making mortgages as a result of this rule? Ms. Fuchs. The Bureau is watching the impacts of the QM rule. And as I mentioned earlier, the rule was specifically designed so that 90 percent to 95 percent of the mortgages that were being made before the QM rule was put in place would be covered by the QM rule. Mr. Rothfus. But won't the overall effect of the QM rule be to advantage certain types of products and certain terms in the marketplace over others? Ms. Fuchs. Don't forget that after the financial crisis, the marketplace changed. And the marketplace changed because there were products that caused the very risks that led to the financial crisis. We anticipate that over time, as the market-- Mr. Rothfus. So you wouldn't agree that maybe the cause was when the former chairman of this committee talked about rolling the dice with respect to the housing market? Ms. Fuchs. No. We feel that as the market gets comfortable with the QM rule, lending will evolve. And we anticipate that there will be innovation in the non-QM space. In fact, we specifically were trying to preserve room for that innovation when we crafted the rule. Mr. Rothfus. In an article that appeared--this is going to go to Mr. Osterman and Mr. Alvarez--in the pages of The Wall Street Journal, it was reported that in the third quarter of 2013, the number of federally-insured banks in the United States fell below 7,000 for the first time since Federal regulators began keeping track in 1934. Are you concerned about this increased level of consolidation in the banking industry? Mr. Osterman. Thanks for your question. It is something that we are monitoring. It has been a cyclical process. If you look at the way the economy has been, it has been very difficult to-- Mr. Rothfus. Does the consolidation in the industry concern you? Mr. Osterman. Even though there has been consolidation, institutions below the $10 billion and billion dollar range have continued to be a very vital part of the economy. So the other thing is, in terms of new institutions getting into the industry, given the fact that we have been in such a difficult financial situation, what we have had is people coming in and actually investing in existing institutions, putting capital in those institutions. Mr. Rothfus. And how many institutions have been created since this law was passed? Mr. Osterman. Since Dodd-Frank? Mr. Rothfus. Since Dodd-Frank was passed. Mr. Osterman. Again, the economic situation--I think we had a de novo last year that was created. It has been very low-- very low amounts. Mr. Rothfus. Thank you, Mr. Chairman. Chairman Hensarling. The time of the gentleman has expired. There are no other Members in the queue. I would like to thank the witnesses for their testimony today and for their patience in having to sit all this time. The Chair notes that some Members may have additional questions for this panel, which they may wish to submit in writing. Without objection, the hearing record will remain open for 5 legislative days for Members to submit written questions to these witnesses and to place their responses in the record. Also, without objection, Members will have 5 legislative days to submit extraneous materials to the Chair for inclusion in the record. This hearing stands adjourned. [Whereupon, at 1:31 p.m., the hearing was adjourned.] A P P E N D I X April 8, 2014 [GRAPHIC] [TIFF OMITTED]