Federal Reserve

Amendments to the Volcker Rule are Adopted but Leave Much to be Done

 

On September 18, the Office of the Comptroller of the Currency (OCC), the Board of Governors of the Federal Reserve System (the Board), the Federal Deposit Insurance Corporation, the Securities and Exchange Commission and the Commodity Futures Trading Commission  (collectively, the Agencies) adopted amendments to the 2013 rules (the 2013 Rules) under Section 13 of the Bank Holding Company Act (BHC), commonly known as the Volcker Rule (the 2019 Amendments).

The Volcker Rule and the 2019 Amendments.  The Volcker Rule imposes complex restrictions on the ability of a “banking entity” and a “nonbank financial company” supervised by the Board to engage in proprietary trading and to have certain interests in, or relationships with, non-registered, private funds, such as hedge funds and private equity funds (each, a Covered Fund).[i] As stated in the Release adopting the 2019 Amendments (the Release),[ii] the “amendments are intended to provide banking entities with clarity about what activities are prohibited and to improve supervision and implementation of section 13.”   The Release provides that banking entities must comply with the final amendments by January 1, 2021 and that the 2013 Rules will remain in effect until their compliance date. Alternatively, the Release provides that a banking entity may voluntarily comply, in whole or in part, with the 2019 Amendments prior to the compliance date, “subject to the agencies’ completion of necessary technological changes.”

The 2019 Amendments are based upon the amendments proposed by the Agencies in May 2018 (the 2018 Proposal). As was the case with respect to the 2018 Proposal, the most significant aspects of the 2019 Amendments relate to the proprietary trading provisions of the Volcker Rule, and specifically the definition of “trading account.”[iii]  An analysis of the trading provisions is beyond the scope of this overview. The following is a brief summary of the provisions of the 2019 Amendments that relate specifically to “Covered Funds.”

Covered Fund Provisions. As noted in the Release, the restrictions imposed on banking entities with respect to a Covered Fund are “designed to ensure that banking entities do not rescue investors in those funds from loss, and do not guarantee nor expose themselves to significant losses due to investments in or other relationships with these funds.”[iv] The 2019 Amendments, however, are a work-in-progress; they do not cover any aspects of the Covered Fund provisions of the 2018 Proposal for which specific rule text was not proposed.

The Release notes that: “the [A]gencies intend to issue an additional notice of proposed rulemaking that would propose additional, specific changes to the restrictions on covered fund investments and activities and other issues related to the treatment of investment funds under the regulations implementing section 13 of the BHC Act.”[v]

For example, the 2018 Proposal sought comment on the Volcker Rule’s general approach to defining the term “Covered Fund,” as well as the existing exclusions from the Covered Fund definition and potential new exclusions from this definition.” However, “[i]n light of the number and complexity of issues under consideration,” the Agencies did not take definitive action on those  issues and merely stated their intent “to address these and other comments received on the covered fund provisions in a subsequent proposed rulemaking.”[vi]

Notwithstanding this vacillation, the Agencies did adopt as proposed the few specific Covered Funds changes in the 2018 Proposal, including:

Risk-Mitigating Hedging: The 2019 Amendments permit banking entities to acquire and retain ownership interests in Covered Funds to hedge certain customer-driven transactions, including for fund-linked products. The Agencies also adopted without change the elimination of the requirement that a risk mitigating hedging transaction “demonstrably” reduces or otherwise significantly mitigates the relevant risks.[vii]

Market Making and Underwriting: The Agencies eliminated the aggregate fund limit and the capital deduction requirement for the value of ownership interests in third-party Covered Funds acquired or retained in accordance with the underwriting or market-making exemption (i.e., Covered Funds that the banking entity does not advise or organize and offer. The Agencies stated that they believe that this change will better align the compliance requirements for underwriting and market making involving Covered Funds with the risks those activities entail.[viii]

Solely Outside the United States: The 2013 Rule imposed several conditions on the availability of the exemption that permits foreign banking entities to acquire or retain an ownership interest in, or act as sponsor to, a Covered Fund, provided that those activities and investments occur solely outside of the United States and certain other conditions are met. Those conditions included that “no financing for the banking entity’s ownership or sponsorship is provided, directly or indirectly by any branch or affiliate that is located in the United States or organized under the laws of the United States or of any State.”  The Agencies adopted without change the proposal to remove the financing condition.[ix]

More to Come, But When? As noted above, the amendment of the Volcker Rule with respect to the Covered Fund issues is a work-in-progress without any deadline for completion. In the meantime, banking entities and their counterparties having relationships and holding interests in a Covered Fund must continue to proceed cautiously taking into consideration the complex provisions of the 2019 Amendments.

Please do not hesitate to contact Edward G. Eisert, Senior Counsel, at [email protected] with any questions that arise.


[i] As defined in the 2013 Rules, a “covered fund” includes:  “an issuer that would be an investment company, as defined in the Investment Company Act of 1940 . . . but for section 3(c)(1) or 3(c)(7) of that Act . . . .” and certain commodity pools under the Commodity Exchange Act.

[ii] A copy of the entire Release can be found here

[iii] As stated in the Release: “The definition of ‘trading account’ is a threshold definition that determines whether the purchase or sale of a financial instrument by a banking entity is subject to the restrictions and requirements of section 13 of the BHC Act and the 2013 rule.”  The BHC, in turn, provides a complex definition of “trading account” to mean: “any account used for acquiring or taking positions in [certain securities and instruments] principally for the purpose of selling in the near term (or otherwise with the intent to resell in order to profit from short-term price movements), and any such other accounts as the [A]gencies, by rule determine.”  IV. Section by Section Summary of the Final Rule,  Subpart B—Proprietary Trading Restrictions.

[iv] Section I. Background.

[v] Section III.  Overview of the Final Rule and Modifications from the Proposal, A. The Final Rule.

[vi] IV. Section by Section Summary of the Final Rule, Subpart C – Covered Fund Activities and Investments, 1. Overview of Agencies’Approach to the Covered Fund Provisions.

[vii] IV. Section by Section Summary of the Final Rule, Subpart C – Covered Fund Activities and Investments,  3.  Section __.13:  Other Permitted Covered Fund Activities, a. Permitted Risk-Mitigating Hedges.

[viii] IV. Section by Section Summary of the Final Rule, Subpart C – Covered Fund Activities and Investments, 2.  Section _.11 Permitted Organizing and Offering, Undeerwriting and Market Making with Respect to a Covererd Fund.

[ix] IV. Section by Section Summary of the Final Rule, Subpart C – Covered Fund Activities and Investments, 3.  Section __.13:  Other Permitted Covered Fund Activities, b. Permitted Covered Fund Activities and Investments Outside the United States.

Agencies Publish Rule Excluding Community Banks from Volcker Rule

 

On July 9, the Federal Deposit Insurance Corporation (FDIC), the Federal Reserve Board, the Commodity Futures Trading Commission (CFTC), the Office of the Comptroller of the Currency (OCC) and the Securities and Exchange Commission (SEC) adopted a final rule that excludes community banks from the Volcker Rule, which restricts banking entities from engaging in proprietary trading and from owning, sponsoring or having certain relationships with hedge funds or private equity funds. Under the final rule that was adopted, community banks with $10 billion or less in total consolidated assets, and which have total trading assets and liabilities that are 5% or less than such community bank’s total consolidated assets, will be excluded from the Volcker Rule.

 

OCC, Federal Reserve and FDIC Propose Revised Capital and Liquidity Framework for Foreign Banking Organizations

 

On May 24, the OCC, Federal Reserve and Federal Deposit Insurance Corporation (FDIC) published a notice of proposed rulemaking that would establish a revised framework for determining capital and liquidity requirements for large foreign banking organizations. Comments on the proposal must be submitted by June 21. Notice of Proposed Rulemaking.

Consumers Slightly Less Optimistic about Personal Finances and the Economy

 

On February 11, the Federal Reserve Bank of New York’s Center for Microeconomic Data released the January 2019 Survey of Consumer Expectations, which shows that while short- and medium- term inflation expectations were unchanged, households were generally less optimistic about the economy and about future changes in their financial situation. Release.

Federal Reserve Board Identifies Error in Historical Dataset Used in Its 2019 Stress Tests and Issues Correction

 

On February 13, the Federal Reserve identified an error in the historical dataset used in its 2019 stress tests and issued a correction. The mortgage rate in the fourth quarter of 2018 was originally published as 4.6 percent and should have been 4.8 percent. All other variables, both their historical values and projected values in the hypothetical scenarios, are unchanged. The scenarios are not forecasts of the Federal Reserve. Release.

Federal Reserve Board Releases Scenarios for 2019 Stress Test Exercises

 

On February 5, the Federal Reserve Board and Office of Comptroller of Currency released the stress scenarios for the 2019 stress test cycle for domestic bank holding companies and foreign bank intermediate bank holding companies with more than $100 billion in total consolidated assets. Banks are required to submit the results of their stress tests to the Federal Reserve by April 5, and the Federal Reserve will release results of its supervisory stress tests by June 30. The Federal Reserve Board announced that banks with consolidated assets between $100 and $250 billion will be relieved from the 2019 cycle. Release.

Federal Reserve Board Requests Comment on Package of Proposals that would Increase the Transparency of its Stress Testing Program

On December 7, 2017, the Federal Reserve Board requested comment on a package of proposals that would increase the transparency of its stress testing program.  The proposed enhanced disclosures have three components: (1) enhanced descriptions of supervisory models, including key variables; (2) modeled loss rates on loans grouped by important risk characteristics and summary statistics associated with the loans in each group; and (3) portfolios of hypothetical loans and the estimated loss rates associated with the loans in each portfolio.  Comments on the measures will be accepted through January 22, 2018. Press Release.

Federal Banking Agencies Finalize Extension of Certain Capital Rule Transitions

 

On November 21, 2017, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency “finalized a rule for certain banking organizations by extending the existing capital requirements for mortgage servicing assets and certain other items.”  These changes will be put into effect on January 1, 2018. FDIC Release. Federal Reserve Release. OCC release.