United States: The Volcker Rule’s Impact On Foreign Banking Organizations

On Tuesday, December 10, 2013, the three federal banking agencies – the Board of Governors of the Federal Reserve System (the "Federal Reserve"), the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation – as well as the Securities & Exchange Commission ("SEC") and the Commodity Futures Trading Commission, approved for comment a final regulation implementing Section 619 of the Dodd-Frank Act, a statutory provision more generally known as the "Volcker Rule." The 72-page final regulations1 with the accompanying 892-page explanatory "Preamble"2 were issued nearly three and a half years after the enactment of the Dodd-Frank Act, and more than two years following the proposed regulations issued in October 2011. In conjunction with the adoption of the final regulations, the Federal Reserve issued an order delaying the conformance date for Volcker for an additional year, until July 21, 2015.3

The Volcker Rule and last week's implementing regulations are significant in a number of respects. The Volcker Rule and its regulations reflect a shift in U.S. regulatory policy towards foreign banks. While historically U.S. banking regulation sought to regulate only those activities of foreign banks that are conducted within offices or affiliates located in the U.S., the Volcker Rule regulates a foreign bank's activities conducted outside the U.S. that have certain contacts with the U.S. Second, the Volcker Rule represents the first major rollback in bank and bank holding company powers in recent times, following a three-decade period of expansionary authority. The rollback in powers is particularly noteworthy because few other countries have sought to impose similar limitations on their home country banks, and as recognized by Federal Reserve Staff when the final regulations were approved, few countries are expected to adopt Volcker-like limitations in the near future. Thus, foreign banks that become subject to the Volcker Rule will find that U.S. law is more restrictive than home country law. Finally, while the regulations are highly complex, they are also highly dependent on interpretations and positions fleshed out in the supervisory process, and thus the true impact of the Volcker Rule and its regulations will not be understood for some time.

Overview of the Volcker Rule

The Volcker Rule applies to "banking entities" – defined by statute to include FDIC-insured depository institutions, bank holding companies, savings and loan holding companies, other entities that control an FDIC-insured depository institution, and foreign banks conducting banking activities in the U.S. (referred to generally as a "foreign banking organization"), as well as any entity affiliated with any of the foregoing.

The Volcker Rule's statutory language – Section 619 of the Dodd-Frank Act – has three basic elements:

  • A general prohibition on "proprietary trading," subject to a few exceptions, including market-making, dealing, and – only with respect to foreign banking organizations, trading activities conducted "solely outside of the United States";
  • A prohibition on acquiring or retaining an ownership interest in, or sponsoring, a private equity or hedge fund (referred to in the final regulations as a "covered fund"), subject only to a handful of exceptions, including sponsoring, or owning de minimis interests in funds, "organized and offered" by the banking entity for certain asset management purposes and – with respect to foreign banking organizations, covered fund activities conducted "solely outside of the United States"; and
  • Restrictions on certain transactions with a private equity or hedge fund if the banking entity or any of its affiliates serves as the fund's sponsor, investment adviser, or investment manager, or if the banking entity "organized and offered" the fund (these restrictions are referred to commonly as "Super 23A & B").

The final regulations issued this week provide further clarity on the application of the Volcker Rule to foreign banking organizations in each of these three areas, and address some (but certainly not all) of the concerns voiced in the comment letter process. Adherence to the Volcker Rule and its final regulations will impose a significant burden on foreign banking organizations and will require substantial effort to ensure full conformance by the July 21, 2015 conformance date.

Below is a summary of the final Volcker Rule regulations, with a particular emphasis on those provisions applicable to foreign banking organizations. However, for most foreign banking organizations, the most important aspects of the final regulations are as follows:

Broad Scope: Despite requests from commenters to limit the broad geographic scope of the Volcker Rule, the final regulations reiterate the extra-territorial scope of the Volcker Rule that appeared in both the statutory language and in the proposed regulations. Under the final regulations, the Volcker Rule applies banking organizations including "any company that is treated as a bank holding company for purposes of section 8 of the International Banking Act," as well as any affiliate or subsidiary of the foregoing (entities subject to the Volcker Rule are collectively referred to as "banking entities"). With respect to non-U.S. organizations, a foreign bank that maintains a branch or agency office in the U.S., as well as any foreign bank or foreign company that controls a foreign bank that has a branch or agency in the U.S., is deemed such a "bank holding company." Also covered by the Volcker Rule is any foreign company that controls an FDIC-insured bank or thrift. Finally, any affiliates of these entities are covered as well. In sum, a non-U.S. bank that has a branch or agency in the U.S., any company or bank that controls such a non-U.S. bank, any non-U.S. company that controls an FDIC-insured bank or thrift, and any of their respective affiliates,4 wherever located in the world, are all considered "banking entities" and each and every such entity is subject to the Volcker Rule.

As a result of this sweeping scope, the Volcker Rule covers nearly 150 top-tier foreign banking organizations headquartered in more than 50 countries outside the U.S., and every one of their affiliates, wherever located.

Proprietary Trading - Exemption for Trading in Foreign Government Obligations: The Volcker Rule prohibits a banking entity from engaging in "proprietary trading" in "financial instruments" (generally, swaps and securities) subject to various exemptions (including exemptions for market-making, underwriting, risk-mitigating hedging, and trading outside the United States). The proposed regulation contained an exemption for trading in U.S. government obligations (including certain state and municipal obligations), but was silent with respect to whether an exemption was available for foreign banks or U.S. banks with respect to non-U.S. government obligations. This issue attracted criticisms during the public comment process, including comment letters from non-U.S. banking regulators.

The final regulations permit a foreign banking organization (including the U.S. branches of the foreign bank or any U.S. subsidiary) to trade in securities that are the obligations of, issued by, or guaranteed by its home country (including any agency or political subdivision, and any multinational central bank of which that country is a member) under which the foreign bank is organized. With respect to a foreign bank that operates in multiple jurisdictions through branches, it is important to note that this exemption allows only trading in the obligations of the home country of the bank – not the host country where the branch is located. The foreign banking organization may, however, trade in sovereign obligations of the host country (or, for that matter, any other instrument), provided the trading activity is structured to comply with the exemption for trading outside of the United States (discussed immediately below).

Proprietary Trading - Exemption for Trading Outside of the United States: The Volcker Rule's statutory language exempts from the proprietary trading ban those trading activities conducted by foreign banking organizations that occur "solely outside of the United States," but the statute did not define the phrase. The proposed regulations define that phrase, and in doing so, would have imposed a number of conditions for such activities to be deemed "solely outside of the United States," including the requirements that no counterparty to the trade may be a resident of the United States, and that the trade may not be "executed" using U.S. execution or clearing facilities (which would have effectively prohibited trading in most U.S. issuer securities. These conditions attracted criticisms regarding their impracticality in the comment process.

The final regulations soften these conditions somewhat; the prohibition on use of U.S. execution facilities was dropped entirely, and certain U.S. persons are permitted to be counterparties.

Under the final regulations, a transaction is considered to satisfy the exemption for transactions "solely outside of the United States" if the following conditions are met:

  • The specific banking entity engaging as principal in the purchase or sale (including any personnel of the banking entity or its affiliate that arranges, negotiates or executes such purchase or sale) is not located in the U.S. or organized under the laws of the U.S. or of any State, and such banking entity is not be owned or controlled, directly or indirectly, by any U.S. entity;
  • The banking entity (including its relevant personnel) that makes the decision to purchase or sell as principal is not located in the U.S. or organized under the laws of the U.S. or of any State;
  • The purchase or sale (including any transaction arising from risk-mitigating hedging related to the financial instruments purchased or sold) is not accounted for as principal directly or on a consolidated basis by any branch or affiliate that is located in the U.S. or organized under the laws of the U.S. or of any State;
  • No financing for the banking entity's purchase or sale is provided, directly or indirectly, by any branch or affiliate that is located in the U.S. or organized under the laws of the U.S. or of any State; and
  • The purchase or sale is not conducted "with or through" any U.S. entity.

Notwithstanding this last condition, a purchase or sale may be "with or through" a U.S. entity if conducted "with or through" (i) the foreign operations of a U.S. entity, (ii) a U.S. entity that is an unaffiliated market intermediary (i.e., a U.S. registered broker-dealer, swap dealer, securities-based swap dealer, or futures commission merchant) acting as principal and the transaction is promptly cleared, or (iii) a U.S. entity that is an unaffiliated market intermediary acting as agent and the transaction is conducted anonymously on an exchange and promptly cleared and settled.

As set forth in the final regulations, this exemption enables a foreign banking organization to engage in proprietary trading notwithstanding the Volcker Rule, provided that the transaction is arranged, negotiated, executed, booked, and financed by a banking entity located outside the U.S. (i.e., not its U.S. branch) and not directly or indirectly by a U.S. entity, no U.S. personnel of the foreign banking organization (including its U.S. branch personnel) is involved in the arranging, negotiation, execution or decision-making of the transaction, and the counterparty is not a U.S. entity other than certain qualifying market intermediaries or the foreign operations of a U.S. banking organization.

Covered Funds - Foreign Regulated Funds: The Volcker Rule's statutory language and the proposed regulations define a "covered fund" solely with respect to its status under the U.S. Investment Company Act of 1940, i.e., whether the fund would be an "investment company" under the Investment Company Act of 1940 but for the exceptions set forth in Sections 3(c)(1) or (3(c)(7) (related to funds with fewer than 100 investors or funds with only qualified purchasers). If a fund is a covered fund, then no banking entity is permitted to acquire or retain an ownership interest in, or sponsor, the covered fund unless an exception applies.

Because the covered fund definition is based solely on a fund's status under the Investment Company Act, it was unclear how to treat a fund organized outside of the United States that would not be available to U.S. investors, because such funds are not subject to the Investment Company Act at all. Thus, there was a possibility that funds that were fully regulated abroad and authorized for sale to retail investors – such as a UCITS – could be considered a "covered fund."

The final regulations create an exemption for foreign public funds, i.e., issuers organized or established outside the U.S. and authorized to offer and sell ownership interests on a retail basis in the issuer's home jurisdiction (e.g., a UCITS), and which sells such ownership interests predominantly (85% or more) through one or more public offerings outside the U.S. Funds satisfying this exception are not considered "covered funds" and foreign banking organizations are not barred from acquiring or retaining an ownership interest in, or sponsoring, a foreign public fund.

It should be noted, however, that the final regulations' compliance provisions require foreign banking organizations to maintain records documenting the basis for being able to rely on this exemption (and certain of the other exemptions from the covered fund definition).

Covered Funds - Foreign Equivalent Funds: To prevent evasion of the Volcker Rule, the proposed regulations contained a provision that required banking organizations (including apparently foreign banking organizations) to determine whether any fund that is organized outside of the United States would be a covered fund if it were organized and offered under the laws of the United States or its shares were offered to U.S. residents; if such a fund would be a covered fund, the fund is then deemed a covered fund for purposes of the Volcker Rule. This provision would have required foreign banking organizations to speculate how a fund purposefully established outside the U.S. and not offering its shares to U.S. residents would be treated if the fund were established in the U.S. or its shares were offered to U.S. residents—a very challenging, hypothetical mental exercise.

The final regulations abandoned this requirement with respect to foreign banking organizations. Foreign banking organizations are free to sponsor, or acquire a retain an ownership interest in, a covered fund that is organized outside the U.S. (provided certain requirements, discussed below, are satisfied), without having to speculate how the fund would be regulated if it were organized in, or issuing into, the U.S. It is important to note that this foreign equivalent funds concept was retained (in somewhat modified form), however, for U.S. banking organizations.

Covered Funds - Activities Outside of the United States: With respect to foreign banking organizations, the Volcker Rule's statutory language permits acquiring or retaining an ownership interest in, or sponsoring, a covered fund if such activities are conducted "solely outside of the United States." In the proposed rule, the regulators imposed a number of conditions for such activities to be deemed "solely outside of the United States."

The final regulations' requirements are very similar to those requirements that were proposed, and not much relief was granted notwithstanding criticisms and concerns voiced in the comment process. In the final regulations, for covered fund activities by a foreign banking organization to be considered "solely outside of the United States," the following conditions must be satisfied:

  • The banking entity acting as the sponsor, or engaging as principal in the acquisition or retention of an ownership interest, must be neither located in the U.S. nor organized under the laws of the U.S. or of any State, and such banking entity may not be owned or controlled, directly or indirectly, by any U.S. entity;
  • The banking entity (including its relevant personnel) that makes the decision to acquire or retain the ownership interest or act as sponsor must be neither located in the U.S. nor organized under the laws of the U.S. or of any State;
  • The ownership or sponsorship (including any transaction arising from risk-mitigating hedging related to the ownership interest) must not be accounted for as principal directly or on a consolidated basis by any branch or affiliate that is located in the U.S. or organized under the laws of the U.S. or of any State;
  • No financing for the banking entity's ownership or sponsorship may be provided, directly or indirectly, by any branch or affiliate that is located in the U.S. or organized under the laws of the U.S. or of any State; and
  • No ownership interest in the covered fund may be "offered for sale or sold to" a "resident of the United States."5

The final regulations define the phrase "offered for sale or sold to," a phrase that first appeared in the proposed regulations but was not defined. The final regulations state that an ownership interest in the covered fund is "offered for sale or sold" to a resident of the U.S. only if it is sold or has been sold pursuant to an offering that "targets" residents of the U.S. While "targets" is not defined in the final regulations, the accompanying Preamble sets forth guidelines of what may be necessary to ensure that an offering does not "target" U.S. residents, including prominent disclosures in the offering materials and controls that prevent distribution of offering materials to U.S. residents.

The accompanying Preamble makes it clear that reliance on the outside of the United States exemption does not preclude a foreign banking organization from engaging in other activities with respect to the covered fund using U.S. subsidiaries or U.S. personnel, provided that the requirements listed above are met. For example, a foreign banking organization may use its U.S. subsidiary or personnel to serve as the covered fund's investment adviser or to provide administrative services for offshore affiliates that serve as the covered fund's sponsor. The Preamble also states that tiered arrangements, e.g., arrangements in which a foreign banking organization sponsors an offshore fund, which in turn sponsors or invests in a U.S. fund, may be problematic if the offshore fund was organized for the purpose of investing in a U.S. fund.

The final regulations also make it clear that existing covered fund arrangements must be brought into compliance by the end of the conformance period (or, if either or both of the two one-year extensions are granted, by the end of the extension period), and that there is no grandfathering for pre-existing covered fund arrangements. Thus, if a foreign banking organization has existing covered fund arrangements that are inconsistent with this outside of the United States exemption – for example, because a U.S. subsidiary acts as a general partner or because the fund either has U.S. investors or is not closed to U.S. investors – the foreign banking organization may need to take steps to address these issues by the end of the conformance period (or any extended conformance period).

Covered Funds – Super 23A & Super 23B Restrictions on Transactions with Certain Covered Funds: The Volcker Rule establishes special restrictions on transactions between a covered fund and any banking entity that serves as an investment manager, investment adviser, organizer and offeror, or sponsor with respect to that covered fund (or transactions between the fund and any affiliate of such banking entity) – regardless whether the banking entity has an ownership interest in the fund. These provisions are nicknamed "Super 23A" and "Super 23B" because they incorporate by reference provisions found in Sections 23A and 23B of the Federal Reserve Act.

  • The Volcker Rule's 'Super 23A" provision flatly bars any transaction between such covered fund and the banking entity (or its affiliate) if such a transaction would be considered a "covered transaction" within the meaning of Section 23A of the Federal Reserve Act, with the banking entity (or its affiliate) treated as if it were a "bank" and the fund treated as if it were a nonbank "affiliate" (subject to certain exceptions). Generally speaking, this provision effectively bars the ability of the banking entity (or its affiliate) to purchase assets from, extend credit to, or invest in, a covered fund that is advised, managed, sponsored or organized and offered by the banking entity and its affiliates.
  • The Volcker Rule "Super 23B" requires that all transactions between such fund and the banking entity (or its affiliate) comply with Section 23B of the Federal Reserve Act, with the banking entity (or its affiliate) treated as if it were a "bank" and the fund treated as if it were a nonbank "affiliate." Generally speaking, this provision requires all transactions between the fund and the banking entity that advised, managed, sponsored, or organized and offered the fund (or the banking entity's affiliate) to be on arms' length terms.

These aspects of the Volcker Rule, which were incorporated into the proposed regulations with little change from the statutory language, posed significant concern for foreign banking organizations because they were not subject to any geographic restriction. A foreign banking organization (and/or its affiliates), wherever located, that serve as an investment manager, investment adviser, organizer and offeror, or sponsor to a covered fund appear to be subject to the Super 23A and Super 23B restrictions, even if that covered fund is outside the U.S. and has no U.S. investors.

The final regulations do not expressly limit the seemingly global scope of Super 23A and Super 23B. At most, the final regulations contain an express exemption for acquiring an "ownership interest in a covered fund in accordance with ... the requirements of ... §__.13 of this subpart." Section __.13(b) authorizes covered fund activities that are "outside of the United States" (as explained earlier). Although not explained further in the final regulations or the accompanying Preamble, this exemption appears to enable a foreign banking organization to acquire and retain an ownership interest in a fund that satisfies the outside of the United States exemption, notwithstanding the restrictions of Super 23A. For example, a foreign banking organization could acquire an ownership interest in a covered fund for which an affiliate is the "organizer and offeror," the investment advisor, the investment manager, or sponsor, provided the outside of the United States conditions are met. However, it is not clear that this exemption would permit Super 23A transactions other than the acquisition of an ownership interest – such as a loan to the covered fund, a purchase of assets from the fund, or a guarantee issued on behalf of the fund.

However, other language in the Preamble suggests that the Agencies may have intended to treat a fund meeting the conditions of the Outside of the United States exemption as not being a "covered funds" for purposes of the Volcker Rule, including with respect to Super 23A and Super 23B. In connection with the Agencies' explanation of the exemption for "organized and offered" funds, the Preamble states:

As described in more detail below, a number of commenters expressed concern about applying the requirements of [the organized and offered exemption] and the final rule outside of the United States, including with respect to foreign public funds organized and offered by foreign banking entities, particularly in situations where requirements in foreign jurisdictions may conflict with the requirements of [the Volcker Rule] and implementing regulations. The Agencies believe that many of the concerns raised with respect to applying [the organized and offered exemption] and the proposed rule outside the United States have been addressed through the revised definition of covered fund described above and revisions to the exemption provided for activities conducted solely outside the United States. In particular, the revised definition of covered fund makes clear that a foreign fund offered outside the United States is only a covered fund under specified circumstances with respect to a banking entity that is, or is controlled directly or indirectly by a banking entity that is, located in or organized or established under the laws of the United States or of any State.... Consequently, a foreign banking entity may invest in or organize and offer a variety of funds outside of the United States without becoming subject to the requirements of [the organized and offered exemption], such as the name-sharing restriction or limitations on director and employee investments.6

A similar discussion appears later with respect to the scope of the compliance provisions:

As discussed in greater detail above in Part IV.B.1, the final rule has been modified to more narrowly focus the scope of the definition of covered fund as it applies to foreign funds. Pursuant to the definition of a covered fund in §__.10(b)(1), a foreign fund may be a covered fund with respect to the U.S. banking entity that sponsors the fund, but not be a covered fund with respect to a foreign bank that invests in the fund solely outside the United States.7

These discussions suggest that any offshore fund that complies with the outside of the United States exemption isn't a "covered fund" at all; if so, a foreign banking organization and its affiliates are free to engage in transactions with that fund notwithstanding the limitations of Super 23A, even if the foreign banking organization is the "organizer and offeror," the investment advisor, the investment manager, or sponsor of that fund. Yet, despite the favorable language found in the Preamble, there is no language in the final regulations that expressly confirms this.

Trade Metrics Reporting: Although not required by the Volcker Rule itself, the proposed regulations required banking organizations that engage in proprietary trading activity (including proprietary trading activity that meets certain of the exemptions, such as market-making, underwriting, or transactions solely outside the U.S.) to provide the banking agencies with seventeen trading metrics each month, compiled at the trading desk and business unit levels and calculated generally on a daily basis. The proposal contained two tiers of metrics based on the volume of trading activity, with entities having greater trading activity subject to greater reporting. However, because the thresholds were based on global trading activity, the trade metrics reporting obligation would in theory apply to foreign banking organizations that have large trading operations but little or no trading in or with the U.S.

The final regulations modify this concept in several important regards. First, the final regulations specify that, with respect to a foreign banking organization, the metrics are calculated based solely on the trading assets and liabilities of its "subsidiaries, affiliates, branches and agencies of the foreign banking entity operating, located or organized in the United States." Thus, trading activities by a foreign banking organization's non-U.S. affiliates are not taken into account when calculating the thresholds.

Second, the final regulations provide that these trade metrics reporting thresholds will be reduced over time, and will require monthly reporting of trading metrics for the highest thresholds and quarterly reporting of metrics for the lower thresholds. Under this sliding scale concept, foreign banking organizations with trading assets and liabilities of U.S. operations of $50 billion or more must begin trade metrics reporting beginning on June 30, 2014 on a monthly basis, 30 days in arrears (but becoming 10 days in arrears in January 2015); foreign banking organizations with trading assets and liabilities of U.S. operations of $25 billion or more must begin trade metric reporting on April 30, 2016, on a quarterly basis, 30 days in arrears; foreign banking organizations with trading assets and liabilities of U.S. operations of $10 billion or more must begin trade metric reporting on December 31, 2016, on a quarterly basis, 30 days in arrears.

Third, the final regulations reduce the number of metrics from seventeen to seven. If a foreign banking entity is subject to trade metric reporting, it is required to provide these seven trading metrics data on its proprietary trading activities subject to the Volcker Rule under the various exemptions (such as market-making, underwriting, and trading in U.S. or foreign government obligations), and it is permitted – not required – to include information on its trading activities conducted pursuant to the "outside of the United States" exemption.

Compliance: Compliance provisions were not specifically mandated in the statutory language of the Volcker Rule. However, the proposed regulations contained very burdensome compliance requirements. The proposed regulations established a two-tiered approach towards compliance, with organizations having a larger volume of Volcker-related activities (i.e., trading and covered funds) being subject to much more detailed compliance obligations. The thresholds for this two-tiered approach once again were based on global activities.

For foreign banking organizations, the final regulations abandon the concept of global thresholds and instead look only to U.S. operations. Moreover, the thresholds are no longer based on the volume of Volcker-related activities but rather simply on U.S. assets.

Under the final regulations, foreign banking organizations with consolidated assets of U.S. operations of less than $50 billion are permitted to adopt standard compliance procedures addressing six core elements. Foreign banking organizations with consolidated assets of U.S. operations of $50 billion or more are required to adopt detailed, "enhanced" compliance procedures consistent with Appendix B of the final regulations. In addition, any banking organization that is required to report trading metrics (including, in theory, a foreign banking organization) is also required to adopt the "enhanced" compliance procedures. It is important to remember that the trade metrics thresholds reduce over time, such that foreign banking organizations that have U.S. trading assets and liabilities of $10 billion or more will eventually be obligated to adopted enhanced compliance procedures, regardless of amount of their consolidated U.S. assets.8 Banking entities engaged in no activities covered by the Volcker Rule (other than trading in U.S. government obligations) are required to adopt compliance procedures only before engaging in activities covered by the Volcker Rule, but otherwise are not required to adopt Volcker compliance procedures.

The compliance provisions apply to any entity in the foreign banking organization that engages in at least some Volcker-related activities. The final regulations state that the "terms, scope and detail of the compliance program shall be appropriate for the types, size, scope and complexity of activities and business structure of the banking entity." As discussed earlier, there is language in the Preamble suggesting that funds operating under the outside of the United States exemption are not, insofar as a foreign banking organization is concerned, a "covered fund" and therefore no compliance program would be required with respect to these fund activities.

For any banking entity with consolidated assets of more than $10 billion (including foreign banking organizations), the final regulations' compliance provisions contain a new documentation requirement with respect to funds activities. The $10 billion threshold appears to be based on global consolidated assets, not U.S. assets, and thus will apply to many foreign banking organizations. These banking entities are required to retain records documenting the legal basis that any fund it sponsors or acquires or retains an ownership interest is not a covered fund based on either the Investment Company Act exclusions or certain of the exemptions found in the final regulations.

Finally, with respect to banking entities that are subject to the "enhanced" compliance procedures, the final regulations adopt a "CEO attestation" requirement. Under this provision, the CEO of the banking entity must annually attest to the appropriate federal banking agency "that the banking entity has in place processes to establish, maintain, enforce, review, test and modify the compliance program ... in a manner reasonably designed to achieve compliance with" the Volcker Rule and the final regulations. The regulations provide that "in the case of a U.S. branch or agency of a foreign banking entity, the attestation may be provided for the entire U.S. operations of the foreign banking entity by the senior management of the [U.S.] operations of the foreign banking entity who is located in the [U.S.]" The final regulations are unclear as to whether this provision allows the senior management of the U.S. operations to also provide the attestation for any non-U.S. operations of the foreign banking organization engaged in Volcker Rule activities or even whether such CEO attestation will be required.

Effective Date: Although materials accompanying the final regulations stated that the final regulations' effective date is April 1, 2014, this is somewhat misleading. Due to the Federal Reserve's extension of the conformance period for an additional year, full conformance with the Volcker Rule's provisions is not required until July 21, 2015. Foreign banking organizations are permitted to request up to two one-year extensions; applications for the first extension period must be filed by mid-January 2015.

Although conformance is not required until July 21, 2015, a foreign banking organization is "expected to engage in good-faith efforts, appropriate for its activities and investments, that will result in the conformance of all of its activities and investments to the requirements of [the Volcker Rule and the Final Regulations] by no later than the end of the conformance period."9 In that regard, the banking agencies expect all banking entities – including foreign banking organizations – to develop conformance plans for bringing their activities and investments into conformance with the Volcker Rule and will likely begin reviewing those conformance plans in 2014. During the conformance period, banking entities "should not expand [existing] activities and make investments ... with an expectation that additional time to conform those activities or investments will be granted." It seems likely that, beginning no later than April 1, 2014 (i.e., the effective date of the final regulations), the agencies will expect banking entities to begin these good faith efforts and to avoid expanding activities or making investments that cannot be brought into compliance by July 21, 2015.

While the conformance period delays compliance with the Volcker Rule's restrictions until July 2015, it does not suspend the obligation to provide trading metrics. Foreign banking organizations whose U.S. trading assets and liabilities exceed the relevant thresholds must begin reporting on the relevant threshold date, regardless of the existence of the conformance period or any extensions granted.

* * * * *

A number of unresolved questions remain regarding the Volcker Rule and its final regulations. Moreover, many aspects of the Volcker Rule are left to later supervisory interpretation by the banking agencies – such as the precise scope of activities permitted under the market-making and risk-mitigating exemptions, and the scope of the compliance program needed to satisfy the regulations' compliance provisions. Many of the unresolved questions will hopefully be resolved in the coming months as banking entities begin to construct their conformance plans and these plans are reviewed by the agencies. The full impact of the Volcker Rule, however, will not likely be understood for several years, or examination cycles, afterwards.

This link contains a more detailed explanation of the Volcker Rule. Inasmuch as the Volcker Rule is highly complex, the explanation is by necessity only a high-level summary.

Footnotes

1 For the text of the Final Regulations see http://www.federalreserve.gov/aboutthefed/boardmeetings/final-common-rules-20131210.pdf.

2 For the text of the Preamble, see http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20131210a2.pdf

3 For the text of the Conformance Period Order, see http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20131210b1.pdf

4 Affiliate" status is determined using the Bank Holding Company Act control test (i.e., holding 25% or more of a voting class, being a GP, controlling the selection of a majority of the directors, trustees, or managing members, or otherwise having a "controlling influence").

5 Based on urgings by commenters, the final regulation adopts the same definition of "resident of the United States" as found in the SEC's Regulation S. Thus, foreign issuers will be able to use a single definition of "resident of the United States" when structuring an offering to comply with U.S. securities laws and the Volcker Rule.

6 See Board of Governors of the Federal Reserve System, Prohibition and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds (Dec. 10, 2013) at pp. 641-42 (emphasis added).

7 Id. at p. 765 (emphasis added).

8 Banking entities with global (not U.S.) consolidated assets of $10 billion or less may adopt Volcker compliance procedures by including appropriate requirements in existing policies and procedures

9 See Board of Governors of the Federal Reserve System, Order Approving Extension of Conformance Period (Dec. 10, 2013), at p. 3.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement

    Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of www.mondaq.com

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

    Disclaimer

    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

    Registration

    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

    Cookies

    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

    Links

    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

    Mail-A-Friend

    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

    Emails

    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

    Security

    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at enquiries@mondaq.com.

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions