| Go-To Guide: |
|
On Sept. 30, 2025, the OFR requested approval from the Florida Financial Services Commission to publish a Notice of Proposed Rule to amend Rules 69U-100.323 and 69U-100.3231 and for final adoption of the proposed amendments, subject to any request for a rule hearing.1 Rules 69U-100.323 and 69U-100.3231 implement the annual attestation requirement and complaint process set forth in the Florida unsafe and unsound practices statute, Section 655.0323, Florida Statutes (commonly referred to as HB 989).
Over the past two years, the OFR has been actively involved in legislative and regulatory initiatives aimed at curbing discriminatory banking practices, commonly referred to as “de-banking practices.” If approved, the OFR’s amendments would expand the scope of existing de-banking protections while increasing the burden on financial institutions.
Proposed Change to Attestation Rule – Executive Officer to Sign Attestation
As it stands, Rule 69U-100.323 requires all financial institutions2 to annually certify, under penalty of perjury, their adherence to Section 655.0323(1)-(2), Florida Statutes, which in turn requires financial institutions to make determinations about the provision or denial of services based on an analysis of risk factors unique to each current or prospective customer or member and prohibits unsafe and unsound practices. The current attestation is signed by an “authorized officer” of the financial institution.
The OFR’s proposed amendment to Rule 69U-100.323 would require executive officers of financial institutions to sign the annual attestations. Requirements associated with the attestation of compliance would otherwise remain the same.
The term “executive officer” is defined under Florida law as “an individual, whether or not the individual has an official title or receives a salary or other compensation, who participates or has authority to participate, other than in the capacity of a director, in the major policymaking functions of a financial institution.”3 In most cases, an “executive officer” will include the chair of the board of directors, the president, the chief executive officer, the chief financial officer, the senior loan officer, and every executive vice president of a financial institution, and the senior trust officer of a trust company.4
Requiring executive officers of financial institutions to sign the attestation under penalty of perjury, instead of allowing the attestation to be given by an “authorized signer” who is directly involved in the operations and has first-hand knowledge of the institution’s compliance, may be problematic, particularly for larger institutions with complex structures.
Notable Changes to the Complaint Process Rule
1. Expanding the Scope of Protected Persons
In its present form, Rule 69U-100.3231 delineates the compliant process for customers and members of financial institutions to report alleged de-banking violations, closely tracking the statutory language of HB 989.
The OFR’s proposed amendment expands the scope of the statutory language of HB 989 and Rule 69U-100.3231 by defining “customer” or “prospective customer” to include “any person or entity for which a financial institution has made a determination of whether to deny, cancel, suspend, terminate, or make available any service, action, or business relationship.”5 This proposed revision is broad enough to potentially bring business relationships with vendors within the scope of protected persons – an expansion that may affect the risk-exposure of financial institutions and limit their ability to elect to establish relationships with vendors that are aligned with the institution’s goals and priorities.
2. Expanding the Scope of Events That Would Trigger a Complaint
Section 655.0323(2)(d), Florida Statutes, provides that it is an unsafe and unsound practice for a financial institution to use any rating, scoring, analysis, tabulation, or action that considers a social credit score based on certain factors.6 The OFR’s proposed amendment expands the scope of the statute by interpreting the terms “score” and “social credit score” broadly, providing that these are “not limited to a numerical evaluation and includes any assessment, appraisal, rating, or consideration.” This change would broaden the scope of events that might trigger a complaint, since, for example, any consideration (whether qualitative or quantitative in nature) based on statutory factors (e.g., political, relating to firearm sales, fossil fuel-based energy production, or otherwise), that leads to a denial, cancellation, suspension, or termination may give rise to a claim under HB 989.
3. Expanding the List of Persons Having Standing to File a Complaint
In its present form, Rule 69U-100.3231 provides that customers or members of a financial institution who suspect a violation of the unsafe and unsound standards in HB 989 may submit a complaint with the OFR. The OFR’s proposed amendment expands the scope of persons able to file a complaint with the OFR to allow “[a] person or entity who suspects that a financial institution has acted in violation of s. 655.0323, Florida Statutes” to file such complaint. This proposal goes beyond the scope of the statutory text of Section 655.0323(4), Florida Statutes, which only permits “the aggrieved customer or member” to file such complaint, allowing other members of the public – including potentially, interest groups, to file a complaint. Furthermore, the proposed amendment expands the scope of permissible complaints to cover any violation of Section 655.0323, Florida Statutes, not just the unsafe and unsound practice provision of Section 655.0323(2).
4. OFR to Forward Complaints That Are “Facially Sufficient”
The OFR’s proposed amendment also provides that the OFR would forward notice of a complaint and copy thereof to the subject financial institution after its “receipt of a facially sufficient complaint.”7 The OFR’s criteria to determine whether a complaint is “facially sufficient” remains unclear.
5. Interpreting that Financial Institutions Bear the Burden of Showing a Service Denial Was Due to Suspicious Activity, When Such Grounds Are Claimed
The OFR’s proposed amendments provide that an institution claiming any action or inaction was due to suspicious activity8 must “clearly indicate such and provide sufficient information to substantiate such claim along with its complaint response report.”9 The proposal further provides that if the OFR determines the complaint response report does not indicate and provide sufficient information to support that the action was taken on the basis of suspicious activity, the OFR would continue its investigation and determine whether a violation occurred.
Although the provision does not go as far as to require disclosure of the existence of a Suspicious Activity Report (SAR) filing under the Bank Secrecy Act (BSA), the language exposes financial institutions to significant risk by providing little guidance on how the institution would balance satisfying its burden of proof with complying with SAR confidentiality requirements.
Rulemaking Process
Pursuant to Section 120.54(2)(a)1, Florida Statutes, agencies must provide notice of the development of proposed rules by publishing a notice of rule development in the Florida Administrative Register at least seven days before providing notice of a proposed rule. The notice must include a short, plain explanation of the purpose and effect of the proposed rule and the full text of the proposed rule, along with a summary of the rule.
Agencies may hold public workshops for purposes of rule development or information gathering for the preparation of the statement of estimated regulatory costs. Notice of a workshop for rule development must be by publication in the Florida Administrative Register not less than 14 days before the workshop is scheduled.
Any person or entity who is substantially affected by a rule or a proposed rule may administratively challenge the validity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority. A petition alleging the invalidity of a proposed rule must be filed within 21 days after the date of publication of the notice of the proposed rule; within 10 days after the final public hearing is held; or within 20 days after the statement of estimated regulatory cost is issued. The petitioner has the burden to prove by a preponderance of the evidence that the petitioner would be substantially affected by the proposed rule. The agency then has the burden to prove by a preponderance of the evidence that the proposed rule is not an invalid exercise of delegated legislative authority as to the objections raised.
The administrative law judge may declare the proposed rule wholly or partly invalid. Unless the decision of the administrative law judge is reversed on appeal, the proposed rule or provision of a proposed rule declared invalid may not be adopted.
Considerations for Financial Institutions
Subject financial institutions should consider the potential impact of the OFR’s proposed amendments on their operations, policies, and procedures. Those interested in challenging the proposed rules should monitor the rulemaking process and evaluate whether they would be substantially affected. Regulatory guidance will be essential to understand, among other things, (a) the expanded scope of a “customer” or “prospective customer,” (b) the criteria for a “facially sufficient complaint,” and (c) what information would be deemed “sufficient information to support the financial institution’s claim that the action or inaction was due to suspicious activity.”10
1 Agenda, Fin. Servs. Comm’n, Office of Fin. Reg., Sept. 30, 2025, at 1-4 [hereinafter, Agenda].
2 See Fla. Stat. § 655.005(1)(i) (2025) (defining “financial institution” to include state or federal savings or thrift associations, banks, savings banks, trust companies, international bank agencies, international banking corporations, international branches, international representative offices, international administrative offices, international trust entities, international trust company representative offices, qualified limited service affiliates, credit unions, agreement corporations operating under § 25 of the Federal Reserve Act, and Edge Act corporations organized under § 25(a) of the Federal Reserve Act). The OFR’s proposed amendment does not address the term “financial institution” nor amends the scope of financial institutions subject to HB 989.
3 See Fla. Stat. § 655.005(1)(g).
4 See id.
5 See Agenda at 4.
6 These factors are: (a) a person’s political opinions, speech, or affiliations; (b) a person’s religious beliefs, religious exercise, or religious affiliations; (c) any factor if it is not a quantitative, impartial, and risk-based standard, including any such factor related to the person’s business sector; or (d) the use of any rating, scoring, analysis, tabulation, or action that considers a social credit score based on factors, including, but not limited to the person’s (i) political opinions, speech, or affiliations; (ii) religious beliefs, religious exercise, or religious affiliations; (iii) lawful ownership of a firearm; (iv) engagement in the lawful manufacture, distribution, sale, purchase, or use of firearms or ammunition; (v) engagement in the exploration, production, utilization, transportation, sale, or manufacture of fossil fuel-based energy, timber, mining, or agriculture; (vi) support of the state or federal government in combatting illegal immigration, drug trafficking, or human trafficking; (vii) engagement with, facilitation of, employment by, support of, business relationship with, representation of, or advocacy for, any person covered by section (d)(i)-(vi) and (viii) herein; (viii) failure to meet or to commit to meet, or expected failure to meet, any of the following (as long as such person is in compliance with applicable state or federal law: (1) environmental standards, including emissions standards, benchmarks, requirements, or disclosures; (2) social governance standards, benchmarks, or requirements, including, but not limited to, environmental or social justice; (3) corporate board or company employment composition standards, benchmarks, requirements, or disclosures based on characteristics protected under the Florida Civil Rights Act of 1992; or (4) policies or procedures requiring or encouraging employee participation in social justice programming including, but not limited to, diversity, equity, or inclusion training.
7 See id.
8 “Suspicious activity” means any transaction reportable as required and described under 31 C.F.R. § 1020.320. See Fla. Stat. § 655.50(3).
9 See Agenda at 4.
10 See Agenda at 4.