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On January 30, the OCC, Federal Reserve Board, FDIC, SEC, and CFTC issued a notice of proposed rulemaking to modify and streamline the “covered funds” requirements under Section 13 of the Bank Holding Company Act, commonly known as the Volcker Rule (Rule). As previously covered by InfoBytes, last fall the regulators signed off on final revisions to the Rule to simplify and tailor its restrictions on a banking entity’s ability to engage in proprietary trading and own certain funds. Specifically, the proposed amendments would modify the restrictions for banking entities investing in, sponsoring, or having certain relationships with covered funds, including simplifying provisions related to foreign public funds, loan securitizations, and small business investment companies. The amendments would also, among other things, (i) limit the extraterritorial impact of the Rule on certain foreign funds offered by foreign banks to foreign investors; (ii) modify and propose several existing exclusions to allow banking entities to invest in or sponsor certain types of funds—subject to certain safeguards—such as credit funds, venture capital funds, family wealth management vehicles, and customer facilitation funds; and (iii) permit intraday extensions of credit, payment, clearing, and settlement transactions between a banking entity and covered funds the banking entity advises or sponsors, or with which the banking entity has certain other relationships. Comments will be accepted through April 1.
On January 29, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced that it took action against seven “Crimean Officials” backed by Russia, and a Russian railway company and its CEO. The announcement states that the officials unilaterally assumed governmental control of the Crimean Peninsula. OFAC designated the officials under Executive Order (E.O.) 13660, in partnership with Canada and the European Union (EU), which both also designated the officials “in a strong demonstration of the international community’s continued condemnation of Russia’s interference in Crimean politics.” According to the announcement, Secretary of the Treasury, Steven T. Mnuchin, asserts that he believes the coordinated designations by OFAC and the two nations may prevent the “illegitimate officials” from doing business internationally. The OFAC designations of the railway company and its CEO for operating in the Crimea Region of Ukraine under E.O. 13685, come shortly after the railway started a passenger route from Russia to the Crimean Peninsula in late December. As a result of the sanctions, “all property and interests in property of these individuals and entity that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated persons, and warned foreign persons that if they knowingly facilitate significant transactions for any of the designated persons, they may be designated themselves.
On January 27, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a $1,125,000 civil settlement with a Marshall Islands shipping company (respondent) with headquarters in the U.S. for 36 apparent violations of the Burmese Sanctions Regulations (BSR). According to OFAC, between 2011 and 2014, the respondent had dealings in the property of a Burma-related company (company) that is included on the Specially Designated Nationals (SDN List), and provided shipping services that benefited the designated company, which were apparent violations of the BSR.
According to the settlement agreement, OFAC considered various aggravating factors in reaching the settlement amount, including that (i) the apparent violations “conferred significant economic benefits to Burma’s military regime”; (ii) the respondent “demonstrated reckless disregard for U.S. sanctions requirements by ignoring” the license denial letters it received from OFAC; (iii) the respondent’s former president knew about and participated in the transactions that comprise the apparent violations; and (iv) the respondent is a “commercially sophisticated shipping company” that is familiar with international shipping transactions. OFAC determined that the apparent violations represent an egregious case.
OFAC also considered various mitigating factors, including that (i) the respondent is under new management, which self-disclosed the apparent violations and cooperated with the investigation; (ii) OFAC has not issued a violation against the respondent in the five years preceding the earliest date of the transactions at issue; and (iii) the respondent undertook extensive remedial measures in response to the alleged violations, including implementing a formal compliance program.
On January 21, U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced a settlement with a New York-based lobbying firm for alleged violations of the Global Terrorism Sanctions Regulations (GTSR). According to OFAC, between August 2017 and November 2017, the firm allegedly dealt in the property or interests in property of a Somalian organization designated as a Specially Designated Global Terrorist (SDGT), when it signed a contract with the organization and received payment for its lobbying services that were “outside the scope of generally authorized activities under the GTSR, including the GTSR general license for legal services.” In arriving at the settlement amount, OFAC considered various mitigating factors, including the fact that the firm voluntarily self-disclosed the issue to OFAC, and the firm implemented remedial measures, including adopting new screening procedures before entering into contracts with potential clients. OFAC also considered various aggravating factors, including that the firm’s executives had actual knowledge of the organization’s SDGT status and actively participated in signing the contract.
On January 23, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced that it took action against four petroleum products companies (network) designated pursuant to Executive Order (E.O.) 13846 for making payments to “an entity instrumental in Iran’s petroleum and petrochemical industries, which helps to finance Iran’s Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF) and its terrorist proxies.” The Iranian entity is on the List of Specially Designated Nationals and Blocked Persons and its property is blocked in conformance with E.O. 13599. According to OFAC, the network transferred payments to the Iranian entity for petroleum exports and “worked to conceal the Iranian origin of these products.” Among other things, these sanctions prohibit foreign financial institutions from “knowingly facilitat[ing] transactions for, or persons that provide material or certain other support to,” the designated petroleum products broker. See the new Iran-related designations here.
On January 17, Federal Reserve Vice Chair for Supervision Randal K. Quarles spoke before the American Bar Association Banking Law Committee meeting in Washington, D.C. on bank supervision and ways to improve transparency, efficiency, and effectiveness. With respect to supervision, Quarles said that the Fed’s communication with supervised banks could be improved and made several specific proposals in the areas of large bank supervision, transparency improvements, and overall supervisory process improvements. In terms of large bank supervision, Quarles discussed how banks are added to the list of complex institutions overseen by the Large Institution Supervision Coordinating Committee (LISCC), particularly with respect to decreases in foreign banking organizations’ (FBOs) size and risk profiles. According to Quarles, over the past decade, four foreign banks have significantly shrunk their presence in the U.S. and reduced risk within their U.S. operations. As a result, these banks’ “estimated systemic impact” is now much smaller than that of the U.S. global systemically important banks. Moving these FBOs to a lower category, he noted, would allow the firms to be supervised alongside other foreign and domestic firms with similar risk profiles. However Quarles emphasized that any changes in these four FBOs’ supervisory portfolios “would have no effect on the regulatory capital or liquidity requirements that currently apply.” Quarles also discussed the Fed’s stress capital buffer proposal—which “will give banks significantly more time to review their stress test results and understand their capital requirements before we demand their final capital plan”—noting that the Fed continues to research ways to “reduce the volatility of stress-test requirements from year to year.”
Concerning transparency, Quarles stated, among other things, that he supports submitting significant supervisory guidance documents with Congress for the purposes of the Congressional Review Act, as it already does with new rules. Quarles also proposed the creation of a database of all significant agency rules and interpretations and seeking public comments on significant supervisory guidance before it is issued. Finally, Quarles said the Fed hopes to maintain “firm and fair supervision” by (i) increasing the ability of supervised firms to share confidential supervisory information; (ii) adopting a rule on the use of guidance in the supervisory process; (iii) restoring the “‘supervisory observation’ category for lesser safety and soundness issues”; and (iv) limiting the use of future Matters Requiring Attention to violations of law, violations of regulation, and material safety and soundness issues.
OFAC identifies Venezuelan aircraft as blocked property, issues amended Venezuela-related general licenses
On January 21, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced amendments to the list of property implicated by the Specially Designated Nationals List (SDN List) pursuant to Executive Order (E.O.) 13884, which blocks the property of the Venezuelan government. OFAC identified 15 aircraft that either transported senior members of the Maduro regime or “operated in an unsafe and unprofessional manner in proximity to U.S. military aircraft, while in international air space.” OFAC reiterated that its “regulations generally prohibit all transactions by U.S. persons or within (or transiting) the United States that involve any property or interests in property of blocked persons.”
In connection with the designations, OFAC issued amended Venezuela General License (GL) 20B, titled “Authorizing Official Activities of Certain International Organizations Involving the Government of Venezuela.” GL 20B authorizes certain transactions and activities otherwise prohibited under E.O.s 13850 and 13857 involving Banco Central de Venezuela, and E.O. 13884 involving the Government of Venezuela.
Earlier, on January 17, OFAC issued two additional amended Venezuela GLs. GL 5B provides that on or after April 22, all transactions related to the financing for, and other dealings in the Petróleos de Venezuela SA 2020 8.5 Percent Bond that would be prohibited under a certain subsection of E.O. 13835, as amended by E.O. 13857, are authorized. GL 8E, titled “Authorizing Transactions Involving Petróleos de Venezuela, S.A. (PdVSA) Necessary for Maintenance of Operations for Certain Entities in Venezuela,” supersedes GL 8D to extend the expiration date for certain authorizations through April 22.
On January 16, the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC) announced the issuance of Iran-related Frequently Asked Question (FAQ) 816, which addresses the question, “Is there a wind-down period for Executive Order [(E.O.)] 13902?” (previously covered in InfoBytes here). According to the FAQ, individuals and entities involved in activities that qualify as sanctionable under E.O. 13902, which include activities dealing with the mining, construction, manufacturing and textiles industries in Iran, should wind down those transactions within 90 days after the E.O. was issued. OFAC stresses that new engagements entered into with the specified Iranian sectors on or after January 10 will not be considered wind-down activities. These new engagements may be sanctionable during the wind-down period, even if the new engagements commence prior to the end of the 90-day wind-down period, which expires on April 9.
On January 13, the Federal Reserve Board (Fed) issued SR 20-2, “Frequently Asked Questions on the Tailoring Rules” (FAQs) applicable to bank holding companies, savings and loan companies, U.S. intermediate holding companies with $100 billion or more in total assets, and certain depository institutions. In October, as previously covered by InfoBytes, the Fed and the OCC released a jointly developed framework that set out four categories to be used to classify these banking entities for the purposes of determining regulatory capital and liquidity requirements based on risk. The FAQs provide guidance on the tailoring rules, including answers to questions about Liquidity Coverage Ratio (LCR) requirements, recognition of Accumulated Other Comprehensive Income, compliance requirements for foreign banking organizations with less than $100 billion in U.S. assets, and the interpretation of “quarterly” in relation to stress testing frequency.
On January 14, the U.S. Treasury Department's Office of Foreign Assets Control (OFAC) announced it was imposing sanctions on a North Korean trading corporation and a China-based North Korean lodging facility for facilitating North Korea’s practice of sending laborers abroad. According to OFAC, North Korea’s continued practice of exporting North Koreans as illicit laborers is an ongoing attempt to undermine and evade United Nations Security Council Resolutions. The designated companies’ exportation of workers on behalf of the country, OFAC stated, has generated revenue for the North Korean government or the Workers’ Party of Korea. As a result of the sanctions, “all property and interests in property of these targets that are in the United States or in the possession or control of U.S. persons must be blocked and reported to OFAC.” OFAC noted that its regulations “generally prohibit” U.S. persons from participating in transactions with the designated persons, and warned foreign financial institutions that if they knowingly facilitate significant transactions for any of the designated individuals, they may be subject to U.S. secondary sanctions.
- Melissa Klimkiewicz to discuss "Lender town hall" at the National Flood Conference webinar
- Daniel P. Stipano to discuss "BSA for BSA seasoned officers" at an NAFCU webinar
- Sherry-Maria Safchuk to discuss "The CCPA: Successes, failures, and practical considerations for compliance" at a American Bar Association webinar
- Jon David D. Langlois to discuss "LIBOR transition: Preparations for legal professionals" at a Mortgage Bankers Association webinar
- Garylene D. Javier to discuss "Navigating workplace culture in 2020" at the DC Bar Conference