The new fiduciary standard is set to begin on June 9. Are you ready?

On Tuesday, April 4, 2017, the Department of Labor finalized a delay to the applicability date of the Fiduciary Rule until June 9, 2017

Introduction

Following President Trump’s February 3, 2017 memorandum (the “Presidential Memorandum”)1 directing the Department of Labor (DOL) to prepare an “updated economic and legal analysis concerning the likely impact” of its “Conflict of Interest Rule” on fiduciary investment advice (the “Rule”) and related prohibited transaction exemptions (PTEs), the DOL finalized a delay to the initial applicability date of the Rule until June 9, 2017.2

The DOL also delayed the initial applicability date of the Best Interest Contract (BIC) Exemption, the Class Exemption for Principal Transactions, and amendments to other previously granted exemptions until June 9, 2017.  The applicability date of the Impartial Conduct Standards in these exemptions is extended until June 9, 2017, while compliance with other conditions for transactions covered by these exemptions (e.g., specific disclosures and representations of fiduciary compliance in written communications with investors) is not required until January 1, 2018.3

In addition, the DOL delayed the initial applicability of amendments to PTE 84-24 for certain insurance companies and agents until January 1, 2018 (other than the Impartial Conduct Standards, which will be applicable on June 9, 2017).

The DOL argued that these extensions are necessary to enable it to examine whether the Rule may adversely affect the ability of Americans to gain access to retirement information and financial advice, and to prepare the updated economic and legal analysis pursuant to the Presidential Memorandum.  The extensions will also allow the DOL to “consider possible changes with respect to the Rule and PTEs based on new evidence or analysis developed pursuant to the examination.”4

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FRB, FDIC issue resolution planning guidance, one-year extension to four FBOs; Issue evaluation of 16 US BHC resolution plans

On March 24, 2017, the Federal Reserve Board (FRB) and Federal Deposit Insurance Corporation (FDIC)1 (collectively, the “agencies”) issued guidance to four foreign banking organizations (FBOs) for their next resolution planning submissions (the “2018 Guidance”) and announced credibility determinations for 16 resolution plans submitted by US bank holding companies (BHCs) in 2015.2

Notably, the agencies extended—from July 1, 2017 to July 1, 2018—the date by which the FBOs must submit their next resolution plans, but did not release credibility determinations for the FBOs’ 2015 resolution plans.

The agencies did not identify deficiencies in any of the plans submitted by the 16 US BHCs, but did identify shortcomings in one of the plans.

For a more detailed analysis of the credibility determinations for the resolution plans submitted by the 16 US BHCs, please click here.

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Department of Labor issues proposal to delay Fiduciary Rule

On Thursday, March 2, 2017, the Department of Labor published a proposal that would delay the Fiduciary Rule by 60 days; comments will be accepted until March 17, 2017

Introduction

On February 3, 2017, President Donald J. Trump issued a memorandum (the “Presidential Memorandum”) directing the Department of Labor (DOL) to examine its “Conflict of Interest Rule” on fiduciary investment advice (the “Rule”) and related prohibited transaction exemptions (PTEs) to “determine whether it may adversely affect the ability of Americans to gain access to retirement information and financial advice.”1 The Presidential Memorandum also raised concerns that the Rule “may not be consistent with the policies of [the] Administration.”

The Presidential Memorandum did not directly delay or order a delay in the Rule’s initial April 10, 2017 applicability date, but directed the DOL to prepare an “updated economic and legal analysis concerning the likely impact” of the Rule.

If the DOL makes an affirmative determination pursuant to these considerations or if it concludes for any other reason that the Rule is inconsistent with the priorities outlined in the Presidential Memorandum, it is directed to publish a proposed rule to rescind or revise the Rule, as appropriate and consistent with law.

On March 2, 2017, the DOL published in the Federal Register a proposed rule that would extend the applicability date of the Rule and PTEs for 60 days (i.e., until June 9, 2017) to allow the DOL to “address questions of law and policy.”2

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Federal Reserve Board issues guidance on illiquid funds under the Volcker Rule

Since the December 2013 finalization of an interagency rule implementing Section 619 of Dodd-Frank (i.e., the Volcker Rule), covered banking entities have sought guidance on many related interpretive issues. The agencies have issued 21 responses to Frequently Asked Questions (FAQs) during this period,1 but none of the FAQs addressed key questions about investments in illiquid funds.

On December 12, 2016, the Federal Reserve Board (FRB) issued guidance—in the form of a statement of policy2 and Supervision and Regulation (SR) Letter 16-183 —regarding how banking entities may seek an extension to conform their investments in illiquid funds to the requirements of the Volcker Rule.

Section 619 of Dodd-Frank permits the FRB to provide a banking entity up to five years from the end of the conformance period (i.e., five years from July 21, 2017) to conform investments in certain illiquid funds.4

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The role of internal audit in recovery and resolution planning

Introduction

US regulators continue to flex their muscles and push resolution planning as a key regulatory driver to reduce systemic risk and the likelihood of an institution being “too big to fail.” On April 13, 2016, the Federal Reserve Board (FRB) and the Federal Deposit Insurance Corporation (FDIC) (collectively, the “Agencies”) jointly determined, for the first time, that certain resolution plans submitted by domestic systemically important banks (D-SIBs) were “not credible or would not facilitate an orderly resolution”1 under the US Bankruptcy Code. Further, the Agencies issued prescriptive guidance increasing expectations for the eight US D-SIBs’ resolution plan submissions due July 1, 2017 (2017 Guidance).2

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Regulatory reporting elements of new proposed rules on physical commodities and capital planning

Although large banking organizations are likely aware of the Federal Reserve Board’s (FRB) recent proposed rules to impose prudential requirements and limitations on certain physical commodity activities1 and modify the capital planning and stress testing rules for “large and noncomplex” firms,2 they may not have paid sufficient attention to the regulatory reporting components of the proposals.

Importantly, these two proposals would make changes to the following reports:

  • FR Y-9C, which collects consolidated financial statements for holding companies;
  • FR Y-9LP, which collects parent-only financial statements for large holding companies; and
  • FR Y-14A/Q/M series related to capital assessments and stress testing.

In addition to understanding the impact of the FRB’s proposals on their businesses, covered US and foreign banking organizations should carefully review the proposed changes to these key regulatory reports and understand what actions are required in order to comply.

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A strategic approach to regulatory risk management

Overview

A recognition has emerged among both domestic and foreign banks that regulatory risk is a critical part of an organization’s risk framework.  Regulatory risk extends beyond the colloquial definition of a change in laws, rules, and regulations that may impact how business is conducted to include monitoring of the regulatory rulemaking environment, impact on policymaking, and overall regulatory relations management—that is, managing relationships with your regulators. Such relationship management extends beyond tactical examination flow and responding to requests; instead, it embraces a larger, more significant role that includes a comprehensive regulatory policy, and regulatory strategy approach. Accordingly, it becomes perhaps more important than ever that foreign banking organizations (FBOs) gain an early understanding of new regulatory developments at the proposal stage and work with the business to understand how to build the requisite capabilities for new regulatory requirements while continuing to meet the business’ strategic objectives.  While doing this, it is important to inform your regulator of how your business and risk strategy are aligned to execute requirements to sustainability (that is, how you will get there).

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New York State proposes new cybersecurity regulation for financial institutions

As federal regulators continue to update existing cybersecurity guidance1 and consider new rules governing banks’ cybersecurity practices,2 the New York State Department of Financial Services (DFS), under the direction of Governor Andrew Cuomo, proposed to establish cybersecurity requirements that go beyond those at the federal level.

On September 13, 2016, the DFS issued a proposal3 that would require banks, insurance companies, and other DFS-regulated entities to establish a cybersecurity program and comply with related requirements. Although these institutions are already subject to cybersecurity requirements at both the federal and state levels, the proposal, which the DFS describes as a “first-in-the-nation” regulation, would establish a more prescriptive framework than any existing regulation.

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Tackling misconduct risk

Financial Stability Board’s areas of focus and forward agenda

As is now customary, the Financial Stability Board (FSB) published a slew of reports ahead of the G20 Leaders’ Summit in Hangzhou. These documents included a second progress report, published on 1 September, on measures to reduce misconduct risk in financial services. This follows a workplan agreed in May 2015, and a first progress report in November 2015. The latest report describes progress made since the end of 2015.

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CFPB seeks to enhance complaint database by allowing consumer feedback on complaint handling process

Consumers will be able to rate how an institution resolves their complaint

On August 1, 2016, the Consumer Financial Protection Bureau (CFPB) published1 a notice and request for comment in the Federal Register on a proposal to enhance its consumer complaint database.  The change would allow consumers to rate an institution’s performance in handling and responding to a consumer’s complaint.  The proposed enhancement, which could impact an organization’s reputational risk, is intended to give consumers the option to highlight an institution’s positive behavior when resolving a consumer complaint by using a one to five rating scale with an option to provide a narrative to support the consumer’s rating.  Comments must be submitted on or before September 30, 2016.

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