The following posts provide a snapshot of the principal U.S., European and global financial regulatory developments of interest to banks, investment firms, broker-dealers, market infrastructures, asset managers and corporates.
UK Secondary Legislation Published to Align Ring-Fencing With Financial Sanctions Legislation
The Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) (Amendment) Order 2018 has been made and will come into force on October 31, 2018.
The Amendment Order amends the definition of a "core deposit" (set out in The Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014) for the purposes of the U.K. framework for the ring-fencing of retail from wholesale/investment banking. Under the U.K. framework, if a deposit is not a "core deposit," then carrying on the regulated activity of accepting deposits in relation to that non-core deposit can take place in the non-ring-fenced bank.
European Commission Formally Withdraws Proposals for an EU Regulation on Bank Structural Reform
Following its announcement in its 2018 Work Programme of its intention to withdraw 15 pending EU legislative proposals, the European Commission has announced the formal withdrawal of that legislation, which includes the 2014 Proposal for a Regulation on structural reform of the EU banking sector.
The original proposal built on the 2013 recommendations of a high level expert group on reforming the structure of EU banking sector, chaired by Bank of Finland Governor and European Central Bank Governing Council member Erkki Liikanen. For banks within its scope, the provisions of the proposed regulation would have imposed a ban on proprietary trading and would have empowered supervisors to require banks to ring-fence certain trading activities from a deposit-taking entity.
UK Prudential Regulator Consults on Reflecting the Systemic Risk Buffer Framework Within the Leverage Ratio Framework for UK Systemic Ring-Fenced Bodies
The U.K. Prudential Regulation Authority has published a consultation paper entitled "UK leverage ratio: Applying the framework to systemic ring-fenced bodies and reflecting the systemic risk buffer."
The Systemic Risk Buffer is one of the elements of the overall capital framework for U.K. banks and building societies. It is applied by the PRA to individual institutions and will be introduced at the same time that ring-fencing comes into force in 2019. SRB institutions are banks falling within the definition of Ring-fenced Bodies in the Financial Services and Markets Act 2000 and large building societies that hold more than £25 billion in deposits (where one or more of the accountholders is a small business) and shares (excluding deferred shares).
US Federal Financial Regulators Propose First Major Revisions to Volcker Rule
The U.S. Board of Governors of the Federal Reserve System, U.S. Office of the Comptroller of the Currency, U.S. Federal Deposit Insurance Corporation, U.S. Securities and Exchange Commission and U.S. Commodity Futures Trading Commission released for public comment a proposal that would simplify and tailor the Volcker Rule. The joint notice of proposed rulemaking includes 342 specific questions for public comment largely focused on reducing compliance burdens under the Volcker Rule.
Commodity Futures Trading Commission Proposes to Maintain $8 Billion Swap Dealer De Minimis Threshold and Approves Proposed Changes to the Volcker Rule
At the Commodity Futures Trading Commission's open meeting on June 4, 2018, the CFTC voted to propose rules that would permanently maintain the swap dealer de minimis registration threshold at $8 billion. The Commission voted 2-1 to issue the proposal, with Chairman J. Christopher Giancarlo and Commissioner Brian Quintenz voting in favor and Commissioner Rostin Behnam dissenting.
Under the proposed rule, firms with less than $8 billion in notional value of OTC derivatives would be exempted from the CFTC's swap dealer registration requirements, as under the current regime. The proposed rule also would exclude swaps of insured depository institutions made in connection with loans from a firm's notional calculation. The proposal seeks comment on a number of other potential exclusions from the de minimis threshold, and Chairman Giancarlo stated that the CFTC is exploring with its counterparts at the Securities and Exchange Commission and prudential regulators further potential exclusions from swap dealer registration.
UK Prudential Regulation Authority Confirms its Revised Expectations on Recovery Planning
Following its consultation earlier this year on its expectations on recovery planning, the Prudential Regulation Authority has published a Policy Statement which sets out the PRA's final revised expectations on the content of recovery plans and the approach to recovery planning for groups which include a ring-fenced body. Alongside the Policy Statement, the PRA has published a new Supervisory Statement on recovery planning and an updated Supervisory Statement on RFBs. The PRA decided to publish the new Supervisory Statement because its experience in assessing firm's plans showed that there was a need to improve the quality of recovery plans and to increase the prospect of plans being credible. The new Supervisory Statement on recovery planning therefore supersedes the previous one, SS-18/13.
UK Prudential Regulation Authority Finalizes Reporting and Prudential Requirements for Ring-Fenced Banks
The UK Prudential Regulation Authority published a Policy Statement, final rules and updates on several Supervisory Statements on the reporting, prudential and recovery and resolution requirements to implement the ring-fencing requirements for banks. The PRA's policy and final rules are relevant to all firms that are required to ring-fence their core banking activities before the implementation date of January 1, 2019. These firms are, broadly speaking, those with at least £25 billion of “core” deposits (defined as deposits from individuals and small businesses) and those that expect to exceed the threshold by January 1, 2019. UK banking groups that have more than £25 billion of core deposits will need to ring-fence the entity or entities that accept core deposits - called ring-fenced bodies - by transferring other business lines to different legal vehicles or undertaking other business separations.
UK Makes Technical Amendments to its Ring-Fencing Legislation
The Financial Services and Markets Act 2000 (Ring-fenced Bodies, Core Activities, Excluded Activities and Prohibitions) (Amendment) Order 2016 was published. The Amendment Order amends the Financial Services and Markets Act 2000 (Ring-fenced Bodies and Core Activities) Order 2014 and the Financial Services and Markets Act 2000 (Excluded Activities and Prohibitions) Order 2014. The Amendment Order, amongst other things, changes the definition of a UK deposit-taker so that it does not capture UK branches of foreign banks, and amends the duty of a ring-fenced bank to provide specified information so that it only applies where individuals are located in an EEA state and in relation to deposit accounts. The amendments come into force on December 1, 2016.
View the Amendment Order.
UK Prudential Regulator Consults on Reporting and Prudential Requirements for Ring-Fenced Banks
The UK Prudential Regulation Authority published a consultation paper on aspects of its policy to implement the ring-fencing requirements for banks. The consultation covers reporting, prudential and recovery and resolution requirements. The proposals are relevant to all firms that are required to ring-fence their core banking activities before the implementation date of January 1, 2019 (which are firms, broadly speaking, with at least £25 billion of core deposits) and to growing firms that expect to meet this threshold by 2019. UK banking groups that have more than £25 billion of core deposits will need to ring-fence the entity/ies that accept deposits - called ring-fenced bodies, by transferring other business lines to different legal vehicles or undertaking other business separations.
The PRA proposes to establish reporting requirements on a sub-consolidated basis when an RFB sub-group is formed, by extending all non-Capital Requirements Regulation reporting requirements that currently apply on a consolidated basis to banking groups affected by ring-fencing to an RFB sub-group and requiring RFBs to submit certain non-CRR reporting returns on a sub-consolidated basis, requiring RFBs to report on a sub-group’s intragroup exposures, related collateral and funding transactions.
US Federal Reserve Formalizes One Year Conformance Extension for Volcker Legacy Fund Investments07/06/2016
The US Federal Reserve Board extended until July 21, 2017, the conformance period for banking entities to divest ownership in certain legacy investment funds and terminate relationships with funds that are prohibited under section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly known as the Volcker Rule. This order formalizes the Federal Reserve Board’s December 2014 announcement that it would make this extension to provide for orderly divestitures and to prevent market disruptions.
This extension would permit banking entities additional time to divest or conform only “legacy covered fund” investments, such as prohibited investments in hedge funds and private equity funds that were made prior to December 31, 2013. This extension does not apply to investments in and relationships with a covered fund made on or after December 31, 2013, or to proprietary trading activities; banking entities were required to conform those activities to the final rule by July 21, 2015.
This is the final of the three one-year extensions that the Federal Reserve Board is authorized to grant. Additionally, upon the application of a banking entity, the Federal Reserve Board is permitted under section 619 to provide up to an additional five years to conform investments in certain illiquid funds, where the banking entity had a contractual commitment to invest in the fund as of May 1, 2010. The Federal Reserve Board expects to provide more information in the near term as to how it will address such applications.
View Federal Reserve Board order approving extension.
US Commodity Futures Trading Commission Announces Volcker Rule CEO Attestation Delivery Method
The Commodity Futures Trading Commission’s Division of Swap Dealer and Intermediary Oversight announced that certain banking entities subject to Appendix B of Part 75 of the CFTC’s regulations, which implements section 619 of the Dodd-Frank Act known as the “Volcker Rule,” should submit their CEO attestations through the following email address: VolckerAttestation@cftc.gov. Appendix B includes requirements that a CEO attestation be submitted to the CFTC regarding the banking entity’s Volcker Rule compliance program.
View the CFTC press release.
UK Regulators Finalize Approach to Ring-fencing Transfer Schemes
The Prudential Regulation Authority published its Policy Statement on feedback to its consultation on the PRA's approach to ring-fencing transfer schemes together with the PRA's final Statement of Policy. The Financial Services (Banking Reform) Act 2013 introduced requirements for UK banking groups that have more than £25 billion of core deposits to ring-fence the entity/ies that accept deposits – called ring-fenced bodies. To assist firms subject to the ring-fencing requirements and restructure their business, provisions were made for transfer of businesses by a RFTS. The PRA's Policy Statement sets out the regulator's responses to questions raised during the consultation, including on the certificate as to financial resources of the transferee, new bank authorizations, alternative group arrangements and immunity of the skilled person. The PRA's Statement of Policy sets out its approach to RFTS, noting that the PRA expects firms to nominate a skilled person to prepare the scheme report which nomination would be subject to the PRA's approval. The Financial Conduct Authority published finalized guidance on its approach to the implementation of the ring-fencing requirements and RFTS. The ring-fencing regime is due to come into effect on January 1, 2019.
View the PRA Policy Statement.
View the PRA Statement of Policy.
View the FCA Guidance.
US House of Representatives Financial Services Committee Holds Hearing on Volcker-Related Legislation
The US House of Representatives’ Financial Services Committee’s Capital Markets Subcommittee held a hearing on legislation that would clarify the name-sharing provision of the Volcker Rule. Specifically, the Financial Services Committee discussed provisions of H.R. 4096, the Investor Clarity and Bank Parity Act, which would “correct a statutory error” in the Volcker Rule which restricts the ability of a banking entity to sponsor a covered fund, specifically by prohibiting name-sharing between a banking entity’s affiliates and a covered fund. The bill would permit investment adviser affiliates to share a name with a covered fund if the investment adviser is not (or does not control) an insured depository institution or is not treated as a bank holding company under Section 8 of the International Banking Act of 1978. The Financial Services Committee will consider a markup of the bill in a hearing scheduled on March 2, 2016.
View the full text of the markup.
US Board of Governors of the Federal Reserve System Proposes IHC Reporting Requirements
The US Board of Governors of the Federal Reserve System published a notice of proposed rulemaking to collect financial information from US intermediate holding companies of foreign banking organizations. The proposal would require all IHCs to commence reporting of the FR Y 9C (Consolidated Financial Statements for Holding Companies), FR Y 9LP (Parent Company Only Financial Statements for Large Holding Companies), FR Y 11 (Financial Statements of US Nonbank Subsidiaries of US Holding Companies), FR 2314 (Financial Statements of Foreign Subsidiaries of US Banking Organizations), FR Y 12 (Consolidated Holding Company Report of Equity Investments in Nonfinancial Companies) and FR Y 15 (Banking Organization Systemic Risk Report) as of September 30, 2016, reporting of the FR Y 14A/M/Q (Capital Assessments and Stress Testing), FR Y 6 (Annual Report of Holding Companies) and FR Y 9ES (Financial Statements for Employee Stock Ownership Plan Holding Companies) as of December 31, 2016, and Reg Y 13 (Recordkeeping and Reporting Requirements Associated with Regulation Y (Capital Plans)) as of January 1, 2017. The notice of proposed rulemaking is open for comments until April 5, 2016.
View the final draft ITS.
Systemic Risk Buffer Proposals for UK Banks and Building Societies Published
The Bank of England's Financial Policy Committee published its proposed framework for the UK Systemic Risk Buffer for ring-fenced banks and large building societies (i.e. those that will be subject to the UK ring-fencing rules from 2019 with assets over £25 billion). The SRB, a discretionary buffer under the EU Capital Requirements Directive, aims to mitigate and prevent long-term non-cyclical macro-prudential or systemic risk.
The FPC is proposing that the SRB rate would be calibrated according to a firm's total Risk-Weighted Assets so that firms with RWA: (i) less than £175 billion will have a 0% SRB; (ii) between £175 and £320 billion will have a 1% SRB; (iii) between £320 and £465 billion will have a 1.5% SRB; (iv) between £465 and £610 billion will have a 2% SRB; (v) between £610 and £755 billion will have a 2.5% SRB; and (vi) over £755 billion will have a 3% SRB.
Firms subject to the SRB will also be subject to a 3% minimum leverage ratio requirement as well as an additional leverage ratio buffer of 35% of the applicable SRB rate. The Prudential Regulation Authority will apply the SRB to individual firms from 2019, which is when the ring-fencing rules will become applicable. Comments to the consultation are due by April 22, 2016. The FPC intends to finalize the rules by May 31, 2016.
View the FPC's consultation paper.
US Regulatory Agencies Issue Two New Volcker Rule FAQs
The US Federal Reserve Board, Office of the Comptroller of the Currency, FDIC, Securities and Exchange Commission and Commodity Futures Trading Commission (collectively, the Agencies) released two new Frequently Asked Questions in respect of the Volcker Rule. FAQ 19 relates to a banking entity’s residual marketmaking positions following termination of its market-making business. FAQ 20 clarifies the applicability of the Volcker Rule’s so-called “Super 23A” provisions to covered transactions entered into before and after the Volcker Rule’s conformance period. FAQ 19 refers to situations where a banking entity terminates its market-making business and holds residual positions from its prior market-making activities. The FAQ states that the banking entity may hold and dispose of such residual market-making positions, provided that: (i) the banking entity hedges the risks of any such positions in accordance with the requirements of the Volcker Rule’s risk-mitigating hedging exemption; and (ii) the banking entity sells or unwinds the residual market-making positions as soon as commercially practicable. In the event that a banking entity holds residual market-making positions but does not hedge the risks of such positions, the subsequent sales of those residual positions would generally be considered proprietary trading under the Volcker Rule.
View the Volcker FAQs.
US Regulators Issue Supervisory Guidance on Capital Treatment of Certain Investments in Covered Funds under Regulatory Capital Rule and Volcker Rule
The US Board of Governors of the Federal Reserve System, together with the US Office of the Comptroller of the Currency and the US Federal Deposit Insurance Corporation, issued guidance entitled Deduction Methodology for Investments in Covered Funds, in order to reconcile the regulatory capital rule and the Volcker Rule with respect to the capital treatment for investments in certain hedge funds and private equity funds (i.e. covered funds under the Volcker Rule). The Methodology provides banking organizations with guidance on reporting deductions of covered funds under the Volcker Rule as well as a step-by-step process to reconcile the treatment of overlapping tier 1 capital deductions for investments in covered funds required by the Volcker Rule with any regulatory capital rule’s deductions for investments in the capital of unconsolidated financial institutions.
View the press release and guidance.
UK Regulator Consults on Implementation of Ring-Fencing for Core UK Financial Services and Activities
The Prudential Regulation Authority published a consultation paper on the implementation of ring-fencing for core UK financial services and activities, as required under the Financial Services and Markets Act 2000. Core activities are defined as: (i) facilities for accepting deposits or other payments into an account and provided in the course of carrying on the core activity of accepting deposits; (ii) facilities for withdrawing money or making payments from such an account; and (iii) overdraft facilities in connection with such an account. In this consultation, the PRA sets out new proposals for ring-fencing policies, including on: (i) prudential requirements for subsidiaries of Ring-Fenced Bodies; (ii) prudential requirements for other potential affiliates that would not necessarily be regulated by the PRA; (iii) intragroup prudential arrangements for groups containing RFBs; and (iv) the use of financial market infrastructures including inter-bank payment systems, Central Securities Depositories and CCPs. The proposals are relevant to all firms that are required to ring-fence their core activities before the implementation date of January 1, 2019 (which are firms, broadly speaking, with at least £25 billion of core deposits) and to growing firms that expect to meet this threshold by 2019. The PRA expects firms that currently meet the core deposits threshold of £25 billion to submit near-final plans to their PRA and FCA supervisors, taking into consideration the proposals in this consultation paper, by January 29, 2016. The PRA intends to publish a policy statement, final rules and supervisory statements by mid-2016 setting out the feedback to this consultation. Comments on the consultation paper are due by January 15, 2016.
View the consultation.
Agencies Issue Two New Volcker Rule FAQs
The US Federal Reserve Board, the US Office of the Comptroller of the Currency, the Federal Deposit Insurance Corporation, the Securities and Exchange Commission, and the Commodity Futures Trading Commission (the "Agencies") released two new frequently asked questions on the Volcker Rule. FAQ 17 clarifies compliance requirements for market making and the identification of covered funds. FAQ 18 relates to CEO certification for prime brokerage transactions.
View the Volcker Rule FAQs.
UK Regulators Publish Consultation on Implementation of Ring-Fencing Transfer Schemes
The Prudential Regulation Authority and Financial Conduct Authority both issued consultations on the implementation of Ring-Fencing Transfer Schemes under the UK's ring-fencing regime. Banks with core deposits over £25 billion over a period of three years must comply with ring-fencing requirements from January 1, 2019, separating the retail arms of banks from their riskier investment banking operations. RFTSs enable some or all of a bank's business to be transferred to another body so that the bank can restructure to comply with the ring-fencing rules. A scheme report, which must comment on whether the scheme could have any adverse effect on third parties, must be prepared by a skilled person approved by the PRA and FCA. The scheme report is intended to assist the court in its decision whether to sanction the scheme. Consent from all affected parties that is not required but third parties affected by the proposed scheme may make representations to the court. The PRA must also consult the FCA before approving a skilled person or a scheme report. The PRA will also issue two certificates: one providing its consent to the scheme and the second to verify that the transferee will have adequate financial resources. Where the transferee is only regulated by the FCA, the FCA must issue the financial resources certificate. The PRA seeks views on its draft Statement of Policy its approach to RFTSs and on its proposed approach for the approval of skilled persons and scheme reports. The FCA seeks views on its draft general guidance on RFTSs. Comments on both consultations are due by October 30, 2015.
View the PRA Consultation Paper.
View the FCA Consultation Paper.
US Federal Deposit Insurance Corporation Chairman Martin J. Gruenberg Gives Remarks at the FDIC Banking Research Conference on the Orderly Failure of Large, Complex, Systemically Important Financial Institutions
The US Federal Deposit Insurance Corporation Chairman, Martin J. Gruenberg, gave a speech at the FDIC Banking Research Conference outlining the progress made by the FDIC to date in instituting a framework under the Dodd-Frank Act for the orderly failure of large, complex, systemically important financial institutions. Among other topics, the speech addressed the FDIC’s efforts to use the living will process to improve resolvability of firms under the US Bankruptcy Code, and the FDIC’s progress in developing the operational capabilities to carry out a resolution under the Orderly Liquidation Authority, a public-sector bankruptcy process prescribed by the Dodd Frank Act for institutions whose resolution under the US Bankruptcy Code would pose systemic concerns. Chairman Gruenberg asserted that using the living will process to bring about changes in the structure and operations of firms to facilitate orderly resolution under bankruptcy is a statutory mandate of the FDIC, as well as being prepared to use the powers available under the Orderly Liquidation Authority to manage the orderly failure of a firm. These remarks echoed previous statements given by Chairman Gruenberg when speaking in front of the Peterson Institute for International Economics in May 2015.
View the Speech.
Volcker Rule Frequently Asked Question 16 Addressing Seeding Period Treatment for Registered Investment Companies and Foreign Public Funds
The five US federal financial regulatory agencies – US Federal Reserve Board, the US Office of the Comptroller of the Currency, the US Federal Deposit Insurance Corporation, the US Securities and Exchange Commission and the US Commodity Futures Trading Commission – issued a new Volcker Rule Frequently Asked Question 16 addressing the status of certain US-registered investment companies and foreign public funds as “banking entities” during their “seeding period.” Certain RICs and foreign public funds are currently excluded from the Volcker Rule’s definition of “covered fund” and FAQ 16 ensures that they will not be treated as “banking entities” under the Volcker Rule solely due to a banking entity’s ownership of the registered investment company or foreign public fund during the “seeding period” absent evidence that the RIC or foreign public fund was being used to evade the Volcker Rule’s requirements.
View Volcker Rule FAQ 16.
Financial Conduct Authority Proposes Rules on Disclosure by Non Ring-Fenced Banks
The Financial Conduct Authority launched a consultation on proposed rules requiring information to be provided to customers by a non-ring-fenced body. The FCA is proposing that a NRFB be required to provide information about its investment and commodities trading activities to individuals with financial assets of at least £250,000 who are account holders or who have applied to open an account. The information is intended to inform customers of the implication of banking with a NRFB entity in a group which includes a ring-fenced bank. The ring-fencing regime is set to apply from January 1, 2019. The FCA’s proposed rules would require a NRFB to provide the information in good time before the regime enters force. A NRFB will also be required to publish the information on its website. Responses to the FCA consultation are due by November 13, 2015. The FCA intends to publish final rules in Q1 2016.
The FCA’s consultation paper.
UK Completes Bank Structural Reform Legislation
The UK Government announced that the legislation to implement the bank ring-fencing regime has been enacted. The Banking Reform Pensions Regulations, enacted on March 4, 2015, will require a ring-fenced bank to ensure that it cannot be liable for the pension liabilities of other group entities by giving powers to the trustees of a ring-fenced bank’s pension scheme to amend the pension scheme, with the consent of employers of the scheme, to achieve ring-fencing of the bank. A ring-fenced bank will be able to seek a court order for release from a shared liability arrangement if the terms of the release cannot be agreed by the parties to the arrangement. The Prudential Regulation Authority, responsible for making the detailed rules applicable to ring-fenced banks, will continue to put those rules in place. The Government expects the ring-fencing regime to be in place by 2019, however, ring-fenced banks have until 2021 to separate their pension schemes.
View the Announcement.
View the Legislation.
UK Government Publishes Final Draft Regulations on Pension Liabilities of Ring-Fenced Bodies
HM Treasury published the final draft Financial Services and Markets Act 2000 (Banking Reform) (Pensions) Regulations together with its response to its consultation on the draft Regulations. The aim of the Regulations is to impose requirements on the pension liabilities of ring-fenced banks to ensure they are not liable for pension schemes of other group entities (except in cases that are specifically prescribed by the Treasury). The draft Regulations provide a framework in which existing pension arrangements can be restructured so that they are aligned with the requirements. In the consultation response, HM Treasury sets out its policy decisions and addresses concerns raised by the respondents, stating that banks would now have to apply for a clearance statement from the Pension Regulator only if changes are likely to be materially detrimental to the scheme and its members. The consultation response also states there is no general provision for transitional tax protections for employees in the Regulations at present but it commits to addressing such issues once it has a better understanding of how banks will implement the ring fence and the nature of any detrimental impact on individuals as a result of scheme changes. The final draft Regulations have now been put before Parliament.
View the consultation response.
View the final regulations.
Volcker Rule FAQs Updated
The Board of Governors of the Federal Reserve along with other regulatory agencies responsible for implementing the Volcker Rule added an additional question under the Volcker Rule Frequently Asked Questions page relating to metrics reporting and confidentiality under the Freedom of Information Act. The updated FAQs indicate that the agencies will maintain the confidentiality of the reported information to the extent permitted by law and encourages entities subject to Appendix A of the Volcker Rule to evaluate potential exemptions and ask for confidential treatment if appropriate, including under Exemption 4 of the FOIA, which exempts confidential trade secrets and commercial information from disclosure.
View the updated Volcker Rule FAQs.