The Volcker Rule: The Agencies’ Proposed Rules Charles M. Horn Oliver Ireland November 21, 2011

1. The Volcker Rule: The Agencies’ Proposed RulesCharles M. HornOliver IrelandNovember 21, 2011 DC-648839

2. The Volcker Rule: The Agencies’ Proposed Rules • Basics and Some History • Compliance and Reporting Requirements • Proprietary Trading • Private Equity Funds and Hedge Funds • Restrictions and Limitations on Permitted Activities • Impact Issues

3. Basics and Some History

4. Basics The statutory Volcker Rule (Dodd-Frank Act section 619) contains two broad prohibitions for banking entities • No proprietary trading • No ownership interest in or sponsorship of a private equity or hedge fund The statutory Volcker Rule contains other requirements • Transactions prohibited that would result in material conflicts of interest, material exposure to high-risk assets or activities, threaten the safety or soundness of the banking entity, or pose a threat to U.S. financial stability • Certain financial relationships with covered funds are prohibited • Nonbank financial firms may be subject to activities restrictions/capital charges • Agencies must issue rules covering internal controls and recordkeeping to insure compliance with statute

5. Basics For nonbanking entities: • Statutory prohibitions on proprietary trading and private equity fund/hedge fund ownership or sponsorship do not apply • A nonbanking financial company that is systemically important will be subject to additional capital requirements and quantitative limits on proprietary trading and ownership in or sponsorship of a private equity or hedge fund Prohibited proprietary trading and private fund activities contain several important conditional exceptions • Proprietary trading exceptions for trading in exempted instruments, underwriting and market-making activities, hedging/risk-mitigation activities, and customer activities • Private fund prohibition exceptions for owned/offered funds

6. History Volcker Rule “embraces the spirit of the Glass-Steagall Act’s separation of ‘commercial’ from ‘investment’ banking by restoring a protective barrier around our critical financial infrastructure.” Cong. Merkley (D-MA)

7. History Rule is intended to “prohibit or restrict certain types of financial activity … that are high-risk or which create significant conflicts of interest” Intent of prohibition is to: • Limit threats to safety and soundness • Limit threats to financial stability • Eliminate any economic subsidy to high-risk activities that is provided by access to lower-cost capital because of participation in the regulatory safety net Senate Banking Committee (April 2010)

8. Chronology–History • January 2009: Group of 30 Report • Proprietary trading a major reason for the financial crisis • Recommends prohibition on proprietary trading by systemically important institutions • June 2009: Administration proposals; no Volcker-type provisions • December 2009: H.R. 4173 passed; no Volcker-type provisions • January 2010: Obama Administration announces support for Rule • April 2010: Merkley-Levin Amendment • May 2010: S. 3217, passed, with amendment • July 2010: Conference committee adds “de minimis” exception to private equity/hedge fund prohibition • July 21, 2010: Dodd-Frank Act signed into law

9. Chronology–Post-Enactment • November 2010: FRB proposes rule on conformance periods • Jan. 2011: FSOC publishes required study • Feb. 2011: FRB releases final rule on conformance periods • October 2011: Proposed interagency regulations for implementation of Volcker Rule (excluding CFTC) Still to come: • 1st or 2nd Quarter 2012: Final regulations on Volcker Rule. • July 21, 2012: Volcker Rule to take effect—with 2-year conformance period. • July 21, 2014: Across-the-board conformance period ends, but extensions are available

10. Summary of the Proposed Rules 76 Fed. Reg. 68846 (Nov. 7, 2011)

11. Summary of the Proposed Rules Issuing Agencies Compliance and Reporting Requirements • Required compliance program that is “reasonably designed” to ensure and monitor” compliance, and that is appropriate for the “size, scope and complexities” of the banking entity’s activities and business structure • Reporting and recordkeeping requirements Key Definitions

12. Summary of the Proposed Rules Proprietary Trading Prohibitions and Exceptions • Definition of “proprietary trading” • Implementation of major proprietary trading exceptions: • Underwriting • Market-making • Risk-mitigating hedging activities • Trading “on behalf of” customers • Trading in permitted instruments • Trading by regulated insurance companies • Trading outside of the United States

13. Summary of the Proposed Rules Covered Fund Prohibitions and Exceptions • Definition of “covered fund” • Implementation of restrictions on owning/sponsoring covered funds • Implementation of major covered fund exceptions: • “Organizing and offering” a covered fund • Investments in covered funds • Permitted covered fund activities and investments • Limits on certain relationships with covered funds Prudential Limits on Permitted Trading and Fund Activities

14. Summary of the Proposed Rules Termination of Activities or Investments; Penalties Conformance Period Provisions • General carryover of existing conformance rules Treatment of Nonbank Financial Institutions • No specific rules proposed at this time

15. Issuing Agencies

16. Issuing Agencies Banking agencies • Federal Reserve Board • Office of the Comptroller of the Currency • Federal Deposit Insurance Corporation Securities and Exchange Commission • The SEC has joined with the banking agencies on the substantive common rule proposals but separately is seeking comments on certain aspects of the proposed rules Commodity Futures Trading Commission – Not yet • The CFTC is one of the agencies that is directed to issue rules, but it has not proposed rules as of now • Speculation over reasons for CFTC inaction to date

17. Compliance and Reporting Requirements

18. Compliance and Reporting Requirements Structure of Required Compliance Program • The proposed rules would create compliance and reporting requirements to assure that (i) covered banking entities comply with the substantive requirements of the Volcker Rule and implementing regulations, and (ii) the financial regulatory agencies can monitor and supervise such compliance • These requirements broadly include: • A compliance program that is reasonably designed to assure and monitor compliance with proprietary trading and covered fund activities and investments • Reporting and recordkeeping requirements for covered trading and covered fund activities

19. Compliance and Reporting Requirements Structure of Required Compliance Program • Certain banking entities that are actively and substantially engaged in trading activities would be subject to more stringent and detailed compliance and reporting requirements that are imposed on a tiered basis, depending on the quantitative level of these activities • All of these requirements, by all accounts, will be costly and burdensome for many banking entities to implement

20. Compliance and Reporting Requirements Compliance Program – Required Minimum Elements for all Banking Entities (Section 20) • Internal written policies and procedures • System of internal controls • Management framework that clearly delineates responsibility and accountability for Volcker Rule compliance • Independent testing of compliance program effectiveness • Training for trading personnel/managers and other appropriate personnel • Making/keeping records sufficient to demonstrate compliance, which must be provided to a banking entity’s regulatory agency on request and maintain for a period of not less than 5 years

21. Compliance and Reporting Requirements Compliance Program – Enhanced Requirements for Certain Banking Entities (Section 20 and Appendix C) • Affected banking entities (“Appendix C banking entities”) are: • Those that engage in proprietary trading and have total worldwide trading assets and liabilities of either (i) equal or greater than $1 billion, or (ii) 10% or more of total assets, measured on a average gross sum basis as determined on the last day of each of the four prior calendar quarters. • Those that invest in or have relationships with covered funds where (i) aggregate investments in covered funds, or (ii) average total assets of covered funds sponsored or advised by the banking entity, are equal or greater than $1 billion, measured as of the last day of each of the four prior calendar quarters

22. Compliance and Reporting Requirements Enhanced Requirements for Appendix C Banking Entities • Significantly more detailed requirements for covered trading activities, covered fund activities or investments • Program requirements • Internal policies and procedures • Internal controls • Accountability requirements • Independent testing • Training • Recordkeeping • These requirements are similar but not identical for proprietary trading and covered fund activities (and therefore are discussed separately below)

23. Compliance and Reporting Requirements Compliance Program – Conditional Exclusion • Conditional exclusion for banking entities “to the extent” not engaged in “activities or investments prohibited or restricted” by the proprietary trading or covered fund rules • Existing compliance policies and procedures must be designed to prevent the banking entity from engaging in covered activities, and require a banking entity to develop the required compliance program before engaging in covered activities • Some questions regarding the practical impact and utility of this conditional exclusion • Trading in exempted instruments • Investment portfolio purchases • Impact of high risk activities/systemic risk requirements

24. Key Global Definitions

25. Key Global Definitions “Banking Entity” • Generally tracks statutory definition, including fiduciary exclusion • Excludes “organized/offered funds” and entities they control “Covered Banking Entity” • Separately defined by each proposing agency generally to include banking entities under each agency’s respective regulatory and supervisory jurisdiction “Resident of the United States” • Broadly tracks parallel definition in SEC Regulation S, but is not altogether identical to Regulation S definition

26. Key Global Definitions “Derivative” • Includes swaps and security-based swaps as defined in Commodity Exchange Act and Securities Exchange Act, respectively, as further defined by CFTC and SEC under Dodd-Frank Act section 712 “Loan” • Loan • Lease • Extension of credit • Secured/unsecured receivable

27. Proprietary Trading

28. Proprietary Trading–Statute Statutory Definitions • “Proprietary trading” is defined as • engaging as principal for the trading account of the banking entity or nonbank financial company (NBFC) • in any transaction to purchase or sell, or otherwise acquire or dispose of, any security, any derivative, any contract of sale of a commodity for future delivery, any option on any such security, derivative, or contract, or “any other security or financial instrument” that the appropriate federal agencies may determine • “Trading account” is defined as: • any account used for acquiring or taking positions principally for the purpose of selling in the near term (or otherwise with the intent to resell in order to profit from short-term pricemovements), or • any such other accounts specified by rule

29. Proprietary Trading–Implementation Rules The agencies’ proprietary trading rules consist of several key elements • Key definitions • Application and elaboration of statutory prohibition • Application and elaboration of statutory exceptions • Detailed and elaborate compliance management, governance and reporting requirements for banking entities that engage in proprietary trading

30. Proprietary Trading Rules–Core Provisions Key Rule Definitions • “Proprietary trading”: Engaging as principal for a trading account in purchase/sale of covered financial positions • Agency activities and transactions for unaffiliated third parties are excluded from the definition • Covered financial position”: • Long, short, synthetic “or other” positions on: (i) securities/options on securities; (ii) derivatives/options on derivatives; (iii) commodity futures • Excludes: (i) loans, (ii) commodities, (iii) foreign exchange or currencies

31. Proprietary Trading Rules–Core Provisions Key Rule Definitions • “Trading Account”: An account that acquires or takes a covered financial position: • for (i) short-tem resale, (ii) price movement benefits, (iii) arbitrage, or (iv) hedging of (i), (ii) or (iii). • That is a market risk capital rule covered position, excluding positions in foreign exchange derivatives and commodity derivatives/futures, if the banking entity calculates such risk-based capital ratios • For any purpose if account holder is a regulated securities/commodities firm

32. Proprietary Trading Rules–Core Provisions Key Rule Definitions • Rebuttable trading account presumption: an account used to acquire a covered financial position for 60 days or less, excluding covered positions acquired as market risk capital rule positions or acquired by regulated commodities/securities professionals (see below), is presumed to be a trading account, but that presumption is rebuttable based on the particular facts/circumstances • Other trading account exceptions • Covered positions arising under qualified repo transactions • Covered positions arising under qualified securities lending and borrowing transactions • Bona fide, documented liquidity management activities • Clearing activities of registered securities clearing firms or derivatives clearing organizations

33. Proprietary Trading Rules–Exceptions Underwriting Activities and Requirements • Required compliance and reporting program • Limited to “securities” • Must occur “solely” in connection with a “distribution” • Limited to registered/exempt/qualified dealers • Activities not to exceed customers’ “reasonable short term demands” • Activities must be designed to generate fee-based revenue not based on price movements or hedging activities • Compensation system cannot reward proprietary trading • Key definitions: “underwriting” and “distribution”

34. Proprietary Trading Rules–Exceptions Market-Making Activities and Requirements • Required compliance and reporting program • Trading desk/unit must hold itself out as engaged in market-making activities • Exception is limited to registered/exempt/qualified/dealers • Market-making activities are not to exceed customers’ “reasonable short term demands” • Activities must be designed to generate fee-based revenue not based on price movements or hedging activities • Compensation system cannot reward proprietary trading • Hedging of permitted market-making positions is allowed • See, Appendix B commentary on identification of permitted market-making activities

35. Proprietary Trading Rules–Exceptions Market-Making Activities and Requirements • Appendix B commentary on market-making activities • Elements of permitted market-making activities • Primary purpose: financial intermediation • Fee/commission spread revenues – not price movements • Customer-facing and customer-related activity • Absence of compensation incentives • Distinguishing permitted and prohibited activities • Risk retention profile and management • Revenue sources • Revenues relative to risk • Customer-facing activity • Fees, commissions and spreads • Compensation incentives

36. Proprietary Trading Rules–Exceptions Hedging Activities and Requirements • Required compliance and reporting program • Must hedge “specific risks” in connection with covered positions • Must be reasonably correlated to underlying position risk based on “facts and circumstances” • Hedging position cannot create significant new financial exposures not already present at outset of transaction • Continuing review, monitoring and management of hedging positions to assure (i) compliance with policies, (ii) maintenance of reasonable correlation and (iii) risk exposure mitigation • Compensation system cannot reward proprietary trading • Hedging positions must be documented: purposes, risks hedged, and level of organization establishing the hedge

37. Proprietary Trading Rules–Exceptions Customer Transactions and Requirements • Banking entity must be acting as investment adviser, commodity trading advisor, trustee or other fiduciary capacity • Transactions must be for accounts of customers • Customer(s) must have sole beneficial ownership of covered positions • Others types of transactions allowed: • Riskless principal transactions • Separate account transactions by regulated insurance companies; must relate to insurance policies issued and comply with applicable state insurance laws • General account transactions by regulated insurance companies; must comply with applicable state insurance laws

38. Proprietary Trading Rules–Exceptions Permitted Instruments and Requirements • U.S. and agency obligations • Ginnie, Fannie, Freddie, FHLB, Farmer Mac and Farm Credit Bank obligations • State and local government obligations • General and limited obligations, including revenue bonds, are permitted

39. Proprietary Trading Rules–Exceptions Non-U.S. Transactions and Requirements • Eligibility limited to banking entities that are FBOs as defined under the IBA and Regulation K, and other qualified foreign banking entities • Transaction must be conducted pursuant to BHCA section 4(c)(9) or 4(c)(13) • For FBOs this means compliance with Regulation K, Subpart B • Asset/revenue/net income tests for other foreign banking entities • Transaction must take place “solely” outside the U.S. • Banking entity effecting transaction cannot be a U.S. entity • No U.S. resident may be a party to the transaction • No banking entity personnel “directly” involved in transaction may be “physically located” in the U.S. • Execution must occur “wholly outside” of the U.S.

40. Proprietary Trading–Compliance and Reporting Requirements Specific Requirements for Certain Banking Entities (“Appendix A Banking Entities”) • All banking entities that have consolidated worldwide trading assets and liabilities equal to or greater than $1 billion, measured on an average gross sum basis as determined on the last day of each of the four prior calendar quarters, will be subject to detailed and extensive reporting and recordkeeping requirements for those trading activities (Section 7 and Appendix A requirements), depending on the nature and level of trading activity

41. Proprietary Trading Rules–Compliance and Reporting Requirements Specific Requirements for Appendix A Banking Entities • These reporting and recordkeeping requirements are tiered as follows: • Banking entities that have consolidated worldwide trading assets and liabilities equal to or greater than $1 billion but less than $5 billion will be required to maintain records and report on their market-making related activities • Banking entities that have consolidated worldwide trading assets and liabilities equal to or greater than $5 billion, however, will be required to maintain records and report on all covered trading activity • This information is required for each “trading unit” of the reporting banking entity

42. Proprietary Trading Rules–Compliance and Reporting Requirements Specific Requirements for Appendix A Banking Entities • Scope of reporting • $1-$5 billion banking entities: 8 data points for market making activities • $5+ banking entities: 17 data points for market-making activities, 5 data points for other permitted trading • Frequency of calculation and reporting • Calculation: every trading day • Reporting: monthly -- reports due 30 days after calendar month’s end or as other requested by supervisory agency

43. Proprietary Trading Rules–Compliance and Reporting Requirements Specific Requirements for Appendix A Banking Entities • Quantitative reporting and recordkeeping requirements • Risk management measurements • Source-of-revenue measurements • Revenue-relative-to-risk measurements • Customer-facing activity measurements • Payment of fees, commissions and spreads measurements • Further, all Appendix A banking entities are Appendix C banking entities (although not necessarily vice-versa), and therefore are subject to compliance management requirements specifically impacting their trading activities

44. Proprietary Trading–Compliance and Reporting Requirements Appendix C Trading Compliance Program Requirements • Internal policies and procedures • Identification of trading accounts • Identification of trading units and organizational structure • Description of missions and strategies • Trader mandates • Description of risks and risk management processes • Hedging policies and procedures • Explanation of compliance • Remediation of violations • Written internal controls • Assure consistency with mission, strategy and risk mitigation • Must address, at a minimum, (i) authorized risks, instruments and products, (ii) risk limits, (iii) robust analysis and quantitative measurements, and (iv) surveillance of program effectiveness

45. Proprietary Trading–Compliance and Reporting Requirements Appendix C Trading Compliance Program Requirements • Responsibility/accountability • Corporate governance • Trader mandates • Management procedures • Business line managers • Senior management responsibilities • Board of directors/CEO responsibilities • Independent testing • Not less than annually • Evaluation of program adequacy/effectiveness, written policies and procedures, internal controls and management procedures • Training • Recordkeeping

46. Private Equity Funds and Hedge Funds (Covered Funds)

47. Covered Funds–Statute Volcker Rule prohibits acquisitions of ownership interests in, and sponsorship of, private/hedge funds “Private equity funds” and “hedge funds” are those funds exempt from the Investment Company Act of 1940 under ICA sections 3(c)(1) or 3(c)(7) • Regulatory agencies have authority to extend the private/hedge fund limitations to other types of funds Permissible fund-related activities: • Organizing/offering covered funds as part of a bona fide trust or advisory business, and related de minimis investments • Prime brokerage services • Investments in SBICs and similar funds The statutory limitations on high-risk positions and activities for proprietary trading also apply to permissible private/hedge fund activities

48. Covered Fund Rules–Core Provisions Rules state that a banking entity may not, as principal, directly or indirectly acquire or retain any ownership interest or sponsor a covered fund Key Definitions • “Covered fund” • Funds exempt under ICA section 3(c)(1) or 3(c)(7) • Commodity pool as defined in CEA section 1a(10) • A non-US issuer that would be a covered fund were it organized or offered under U.S. or state law or offered to U.S. residents • “Any similar fund” as agencies may determine by rule • “Ownership interest” • Any equity, partnership or similar interest in a covered fund • Excludes qualifying carried interests

49. Covered Fund Rules–Core Provisions Key Definitions • “Prime brokerage” • One or more products or services provided by a banking entity to a fund such as: custody; clearance; securities borrowing or lending; trade execution; or financing, data, operational or portfolio management support • “Sponsor” • Serve as GP, managing member/trustee/CPO of covered fund • Ability to select/control directors/similar officials of covered fund • Share a name/name variation with a covered fund • “Trustee” • Excludes nondiscretionary trustees and directed trustees as defined in ERISA • Includes persons with investment discretion controlling a nondiscretionary/directed trustee

50. Covered Funds–Exceptions Bona Fide Fiduciary Services – Organize/Offer • A banking entity that provides bona fide trust, fiduciary, or investment advisory services may organize and offer a covered fund, if the banking entity: • Offers interests in covered fund only in connection with providing bona fide trust or related services to customers • Retains only a de minimis investment in fund • Observes “super 23A” and section 23B restrictions on transactions with fund • Does not, directly or indirectly, support fund obligations or performance • Does not share a name (or derivation) with fund, and fund does not use the word “bank” in its name • Does not permit any director or employee of the banking entity to have an economic interest in fund, except persons “directly engaged” in providing investment advisory services to fund • Discloses to investors that fund losses are not borne by the banking entity