The Plan for Prosperity

The Independent Community Bankers of America (ICBA) recently released its legislative priorities for bank regulatory burden reduction called the Plan for Prosperity.  The Plan's goal is to provide targeted regulatory relief to community banks thereby allowing them to focus more on serving their customers and communities.  It's a good plan and I wish Cam Fine and his army of members the best as they attempt to gain traction and yardage in this important area.

I wanted to touch on two topics, one is implied in the Plan for Prosperity and the other is absent.  I hope the absent one could be included in the next 'refresh' of ICBA's legislative priorities.

The first topic is the Plan's section on Strengthening Accountability in Bank Exams:  A Workable Appeals Process.

I would like to suggest an additional method that would promote both accountability and consistency in bank examinations -- a cross-agency quality assurance function.  Each bank regulatory agency, federal or state, has some kind of quality assurance program in place to promote quality bank supervision within their respective agencies.  To my knowledge, there is no quality assurance function to promote accountability and consistency among and between bank regulators, state and federal, except the occasional, and usually incident-driven, reviews by the Government Accountability Office (GAO).

Establishing an examination sampling function for reviewing the examination-level application of Federal Financial Institutions Examination Council (FFIEC)- approved interagency policies and guidelines would help both bankers and examiners.  It could be housed at the FFIEC, as something similar was contemplated in a section of the now-expired Capito-Maloney bill.  Bankers and examiners will agree, there is just a constant stream of complaints or observations that one bank regulatory agency is handling interagency policy differently than other bank regulatory agencies.  Usually the complaint to the examiner is that some other bank regulator is being a "light touch" at another bank, while you are being a "hard ass".

The other item is not in the Plan for Prosperity, but it would go a long way toward addressing a concern raised during the Transaction Account Guarantee (TAG) extension debate.  That is how community banks can retain large, uninsured deposits when there is a perception, deserved or not, that such funds would migrate over time toward the so-called Too Big to Fail (or Jail) banks.  There are existing mechanisms that community banks can use to give comfort to their "nervous money"... CDARS and repurchase agreements, for example.  But one option that has been overlooked and may be less cumbersome than the other options, is to lobby for a statutory approval for national banks to secure private deposits.

In 1934, the Supreme Court in Texas & Pacific Railway Co. v.  Pottorff  held that the incidental powers provision of the National Bank Act could not be used to justify the practice of securing private deposits.  Such powers must be specifically granted by law.  So today, national banks do have some limited and specific statutory authorizations, for example collateralizing public funds (12 USC 90), trust funds (12 USC 92a) and Native American Funds (25 USC 156), but no general statutory authorization.  Many states, however, do authorize their state-chartered banks to secure private deposits.

The Federal Deposit Insurance Corporation Improvement Act of 1991 (FDICIA) comes along later with provisions that restrict and prohibit insured state banks and their subsidiaries from engaging in activities and investments that are not permissible for national banks and their subsidiaries.  There is a FDICIA exception, however, for an insured state bank, that meets and continues to meet applicable capital standards, to conduct certain otherwise-prohibited activities if the bank obtains the FDIC's prior written consent.  So even though many state-chartered banks may be authorized, under the terms of their state charter, to secure private deposits, the fact that national banks are prohibited from doing so forces the state-chartered bank into a burdensome application and approval process with the FDIC.

The present situation is not wonderful for everyone involved.  A simple amendment to the National Bank Act, containing a general authorization to secure private deposits, contingent on the existence of adequate capital, liquidity, and asset/liability management practices, could reduce regulatory burden and provide an additional option for making uninsured "nervous money" in community banks less so. 

    A Lessons-Learned Review

It's a bittersweet simultaneous juxtaposition:  the proud celebration of the 150th Anniversary of the Office of the Comptroller of the Currency (OCC) and the ongoing congressional and media bruising recently-appointed Comptroller of the Currency, Tom Curry, is taking on behalf of the agency he leads.  For OCC alumni, current employees, and the interested public,  it might be instructive for us to think about the lessons we can learn (or might have learned) from our OCC forebears.

In this blog posting, we are going to turn the calendar back almost a generation, 17 years, to an excerpt of a speech given by Emory "Wayne" Rushton.  A seasoned veteran examiner, Wayne Rushton had just been selected OCC Manager of the Year by incoming Comptroller Eugene Ludwig.  The speech was delivered in Detroit, Michigan to a conference of OCC managers and executives.  

At my request, Wayne was kind enough to share a copy of his speaker's notes from his personal archives.  Excerpted below is a portion of his notes.  These notes were not meant to be prepared text.  All points of emphasis are his.  Only format adjustments were made to accommodate the nationalbankexaminer.com financial blog format:

Remarks by Emory W. Rushton

OCC Management Conference

Detroit, Michigan

_______

September 17, 1996

"... And I BELIEVE very deeply that what we're trying to do now with supervision by risk is the right way to go.  At the very LEAST, it raises the consciousness of the industry to the need for effective risk management systems and controls and to the fact that we'll be looking at them more closely.

But some of us here today have had to deal directly and personally with bankers during MUCH more stressful times and we've seen first hand proof of the axiom that "desperate people do desperate things."  We've seen over and over again that when banks come under stress and start getting desperate, the very FIRST things they tend to neglect or that they purposefully begin to compromise are their risk management systems.

So, we've got to be absolutely certain that supervision by risk includes not only the capability of identifying, measuring, and discussing risk but also the guts to intervene in those situations where the quantity of risk is clearly getting too high for the quality of systems that are in place.  And to do so WHILE THERE'S STILL TIME TO AFFECT THE OUTCOME.  Preferably with moral suasion, but more directly, if necessary.

Some of our biggest successes... though under reported at the time - came as a result of our willingness to step over the line and provide a "significant emotional experience" to the board of directors while they still had enough time to fix the problems THEMSELVES.

But too often in the past, we let things deteriorate beyond the point of no return before we finally acted.

We waited and we worried as underwriting standards kept sliding down, rationalized away under the guise of "competitive necessity";

as assumptions about oil and gas prices or rent rolls five years out went through the roof  based on pure speculation;

as internal audit and loan review staff were being scaled back in a near sighted attempt to help control expenses;

as desperate lenders and desperate traders found new ways to "bet the bank" to "double up and catch up", usually a poor strategy in poker, and almost always dangerous in banking!

So that by the time we finally did act, it was frequently just too little too late, the bullet was already in the body.

Ironically, though, that was when our supervisory model for problem banks really kicked into high gear when they were weakest and least able to take our burden.  Basically, we'd just examine them to death until we found enough embedded losses to wipe out their capital or, in the process, scared away their liquidity and then we'd turn out the lights and toss the keys to the FDIC.

We simply can't do it that way any more.  FDICIA won't LET us do it that way any more!

So, I believe we have to go beyond the intellectual stage of defining what banking risk is, although that was an essential step.  Beyond the ministerial stages of adding an SMS screen here and word smithing strategies there, although those things have to be done.  But let's REALLY take the plunge and do whatever's required to connect up our theories with our ACTIONS, out in the banks where it counts!

And that will take some doing INTERNALLY,  ADMINISTRATIVELY through technical training, reassignments, rescheduling, REORGANIZING, WHATEVER IT TAKES, so that we match the RIGHT PEOPLE with the RIGHT RISK, at the RIGHT TIME, not when it's too late to do anything about it.

It may prove controversial, but we can't let ourselves be held hostage by fears that some bankers and some examiners may not agree with, or may not like what we KNOW IN OUR GUT we're going to HAVE to do sooner or later. There's just too much at stake.

But intervention is tricky business, I know.  There's only a fine line between advocating change and becoming the instrument of change itself.  Between an "examiner recommendation" and an "OCC mandate" and sometimes its just a matter of the banker's perception.  And we're likely to get burned if we're too quick OR too slow.

But that's always been the defining feature, the artistry of good bank supervision, knowing when it's necessary to cross that line and when it's not.  And knowing HOW to do it so that your motives and conduct are above question, so that even the most contentious banker knows you're really doing it for the good of the bank.

It most certainly requires the right people

EXAMINERS who're skilled, experienced, and committed; not nit pickers or gunslingers, but not shrinking violets either.

And I've got to interject something here about what I view as our OWN operating risk, it could be our Achilles Heel if we don't do something about it.  And that is there are more than a few examiners in the field today who perceive that when OCC management says "no nitpicking", it really means "no criticizing" PERIOD!  That, my friends, is a recipe for disaster!!!

We've got to know what's going on out there among our people, what they're thinking, saying everyday out in the field, in the banks.  Our "inreach" has to be just as good as our outreach!

Focus Groups are a giant step in that direction, but they can't do it all.  This HAS to be a shared responsibility between examiners and management.  There could be no greater disservice by an examiner to the OCC or to himself or herself than failing to report known problems;  than promoting a false sense of security that things are better than we know them to be; or, heaven forbid, that we're "on top of things", if in fact we're not!!!  That too would be a prepaid ticket back to the dark days of 1991.

If OCC's called to testify after the next crisis, let's try to avoid even the possibility of dialogue such as:

"Mr. Chairman we at the OCC regretfully must concede that

we could have and should have done more in this case."

or perhaps even worse:

"Mr. Comptroller this Committee is very disturbed that your

examiners apparently knew about these problems but were

afraid to report them."

We simply can't AFFORD that scenario again. We can't afford a big surprise. The building might be able to stand on the remaining three pillars, but there would be serious structural damage.

And finally, I realize that all of this contemplates a far better institutional memory, a sense of history than currently exists in the OCC.  But PLEASE keep in mind that everything you do today is NOT NECESSARILY a case of first impression.  We've been down many of these same roads before.

I think that all too often, there's a tendency to minimize the work of people who went before us; that is IF we even know about it, and some of it clearly deserves that fate.   But we can still LEARN from it!..."

**********

Editor:  Wayne's words speak for themselves.

All for One, One for All

I wanted to comment on the recent FDIC Community Banking Study.  It's a very nice piece of work, highly recommended.  Its data-driven triangulation of the profile of the community bank population should help immensely as opportunities, costs, and regulatory burdens for community banks are debated and deliberated upon in policy circles.

The community banker interviews, discussed in Appendix B of the study, haven't received much banking media attention, but deserve to be highlighted.  The study's authors conducted interviews with nine community bankers to understand what drives the cost of regulatory compliance.  While that may be a small sample size, the collective opinions of these nine community bankers merit attention.

Here are some clips:

“Most of the interview participants stated that no one regulation or (supervisory) practice had a significant effect on their institution. Instead, most stated that the strain on their organization came from the cumulative effects of all the regulatory requirements that have built up over time.”

“Most of the interview participants indicated that they consider regulatory compliance as part of the normal cost of conducting business. Consistent with the notion that these costs were a normal part of business, the interview participants noted that their overall business model and strategic direction had not changed or been affected by the regulatory compliance cost issues.”

“While the primary goal of the interviews was to identify what drives regulatory compliance costs at community banks, two related themes emerged. A majority of the interview participants discussed their increasing reliance on consultants and their dependence on service providers....

...Many of the interview participants stated that their increasing reliance on consultants is driven by their inability to understand and implement regulatory changes within required timeframes and their concern that their method of compliance may not pass regulatory scrutiny...

...With regard to dependence on service providers, each of the interview participants noted that they had contracted with at least one firm to provide products and automated processes that provide a cost-effective means of complying with certain regulations. While these service providers are considered beneficial to their bank's operations, interview participants noted that these firms have few incentives to make timely changes to their software to meet new regulatory requirements. These time delays could affect their bank's ability to comply with new or changed rules.”

One option community banks might consider to deal with the increasing reliance on consultants and the concern about service provider responsiveness is confederation. Confederation describes a type of organization which consolidates authority from other independent and autonomous bodies.  In the community bank context, it might be a central organization that uses the collective leverage of its members to drive down consultant costs, be a clearinghouse for compliance solutions, or possibly promote standardized compliance solutions among its members.  A confederation has the potential to use its muscle to improve servicer responsiveness or, in some cases, potentially replace vendors entirely and provide those services to members on a not-for-profit basis.

One example of a confederation in another industry is the Independent Grocers Alliance (IGA).  The Independent Grocers Alliance was started in May 1926 when a group of 100 independent retailers organized themselves into a single marketing system.  Contrasting with the big chain grocery store business model, IGA operates through stores that are owned separately from the brand.  But like the big chain stores, IGA provided their local members with common branding, technical support, a distribution network, and the leverage of the consolidated buying power of its members.  It has expanded into the world's largest voluntary supermarket chain with more than 5,000 member stores worldwide.

To varying degrees and in many respects, banking trade associations have taken many of the steps toward stronger confederation among community banks.  Some have subsidiaries that provide compliance management consulting services and certain vendor platforms.  But as the comments made by these nine community bankers seem to indicate, there are opportunities for further advancement.  Maybe turning down the volume of the seemingly interminable anti-credit union histrionics and channeling it into exploring these opportunities might be a more valued use of banking trade association resources.

Stunned!

I was really taken aback by portions of the Comptroller of the Currency's speech today  to the annual conference of the Institute of International Bankers. 

First, to me, the tone of the Bank Secrecy Act/Anti-Money Laundering (BSA/AML) portion of the speech communicates an undercurrent of apology for the challenges of BSA/AML compliance in our nation's largest banks.  As the speech rightly notes, the Bank Secrecy Act was passed in 1970 (that would be almost a half a century ago), beefed up in 1986 (that would be more than a quarter of a century ago) and the USA PATRIOT Act was passed after the 9/11 attacks (over a decade ago).  That's plenty of time for mega-banks with their deep pockets, unbridled access to talent, and IT resources to get their BSA/AML compliance right, if their hearts were really in it.  Large bank BSA/AML compliance programs should be shining banking industry examples (many are), not sources of national and international concern.  

Another bothersome portion was this:  "In addition, there’s a significant risk that these activities will migrate to smaller banks and thrifts as larger institutions improve their programs and exit businesses that present elevated levels of risk.  Smaller institutions may lack the resources and personnel necessary to successfully manage higher-risk activities, and so they need to be especially vigilant." 

Speaking only from examining experience in community banks in South Florida, the reality was that the opposite was frequently true.  Community bankers, who had better knowledge of their customers and are assisted by sophisticated BSA/AML compliance software, commonly saw high-risk customers, with unusual and suspicious activity, move their relationships to the large banks.  At the large banks, they would then be small fish in a big pond, and therefore less detectable. 

Sure, there are community banks that haven't gotten it right, and they rightfully receive appropriate BSA/AML enforcement actions.  But BSA/AML compliance has been on the community bank examination front burner for many, many years.  Community banks nationwide have devoted extensive resources to BSA/AML compliance.  All are expected to do frequent BSA/AML risk assessments, so that bank compliance resources can be aligned with their emerging BSA/AML risks.

I would posit that those community banks in South Florida devote more resources to BSA/AML compliance per dollar of bank assets than any of the mega-banks.  It's not uncommon to see banks in South Florida with total assets of  $300 - $600 million, that have high BSA/AML risk, to have eight to twelve employees devoted to BSA/AML compliance and suspicious activity reporting.  Larger high-risk community banks devote even more.

The old banking industry speech prop of things trickling-down from the rarefied altitudes of Wall Street to the ill-prepared, shoeless provincials in the community banks may command nods and murmurs of agreement from an audience of international bankers at the posh Washington Four Seasons Hotel, but the reality, in this case, may very well be different.

The mutual goal is to get the nefarious actors out of the banking system.  Once some of the non-compliant large banks get their acts together, those nefarious actors will find that community bankers are better prepared than ever before.  And with all of the entry points to the formal banking system being properly policed, they will need to find other ways to do their dirty business.

M & A Generals,

Be Sure to Attend to Your Rear Guard

(Part 2)

Photo by Sgt. 1st Class Kevin Bell

In Part 1, we discussed how Community Reinvestment Act (CRA) performance may impact bank merger and acquisition applications.  Let's move to the Bank Secrecy Act/Anti-Money Laundering (BSA/AML) aspect, and then end with a discussion of compliance management issues generally.

Whether one philosophically agrees with it or not, the USA PATRIOT Act deputized the U.S. banking system in the war on financial crime and terrorist finance.  Section 327 of the Act requires bank regulatory agencies to evaluate an institution's AML record when considering bank mergers, acquisitions, and other applications for business combinations.  Generally, the regulatory agency reviews examination results and other existing supervisory records.  It also considers comments received during the public notice period, including comments from other regulators and public officials.

Since BSA/AML is reviewed at each full-scope examination of a bank, the issue of potentially stale examination results doesn't really apply, as in our earlier discussion of CRA performance.  Nevertheless, the office processing the merger or acquisition application may request a quick “refresh” of the last examination results if there were violations of law or regulation cited and/or BSA/AML-related Matters Requiring Attention (MRAs).  An MRA is not closed out until the corrective actions are verified as effective by a subsequent onsite examination or visit.  

Unlike CRA examinations, where CRA Performance Evaluations are publicly available.  BSA/AML examination results are confidential (as are all parts of an examination report) and are technically not available for due diligence review (see footnote below).  However, based on the bank M&A literature I've read and anecdotal feedback, this provision may sometimes be honored in the breach, as a review of the examination reports and regulatory correspondence of the target bank is a typical step in the due diligence checklists used by many professional services firms.

Even knowing previous BSA/AML examination results, it is imperative that the due diligence review of BSA/AML be exhaustive for banks with high risk customers, high risk products, or that do business in high risk geographies (or have customers that do).  I understand the trade-off between doing a deep-dive, transaction testing BSA/AML review and the short window of time allowed for typical due diligence.  And sure, the target bank may have a BSA audit.  But unless you are going to review the BSA/AML audit work-papers intimately, you won't know if it is an adequate audit.  To cut corners here would be a false economy and a risky move.  Where the acquiring or target banks do not present high BSA/AML risk, make sure you have recent BSA/AML risk assessments and current BSA/AML audits prior to filing the merger or acquisition application.  

Last, we come to compliance management generally.  Solid drill-down and limited transaction testing into major compliance responsibilities is critical. The banks involved in the transaction need to have robust and effective compliance management processes.  While not a statutory requirement for approval of a merger or acquisition application, remember, as the acquirer, you will inherit original sin when it comes to compliance issues. This includes FDIC-assisted acquisitions.  The Flood Disaster Protection Act is one area that I've seen come back to bite.  Another is the area of UDAP (Unfair or Deceptive Acts or Practices).  Compliance land mines can be a major post-transaction headache, just ask Bank of America about their acquisition of Countrywide! 

While some may claim that you could lawyer away of some the risks with warranties, representations, and indemnification clauses, those clauses are way easier to write than they are to enforce.  It is amazing how the medical condition called Sudden Onset Senility (SOS) spreads like a virus during the pursuit of subsequent legal claims.

Again, the science of the deal and the numbers are important, but acquirers also need to attend to the strategic risks embedded in the Bank Merger Act regulatory approval process.

****************
(1)  The issue of examination report confidentiality for national banks and federal thrifts, for example, is outlined in 12 CFR 4.37(b)(2) which states: “When necessary or appropriate for bank business purposes, a national bank or holding company, or any director, officer, or employee thereof, may disclose nonpublic OCC information, including information contained in, or related to, OCC reports of examination, to a person or organization officially connected with the bank as officer, director, employee, attorney, auditor, or independent auditor.  A national bank or holding company or a director, officer, or employee thereof may also release non-public OCC information to a consultant under this paragraph if the consultant is under a written contract to provide services to the bank and the consultant has a written agreement with the bank in which the consultant: (i) States its awareness of, and agreement to abide by, the prohibition on the dissemination of non-public OCC information contained in paragraph (b)(1) of this section; and (ii) Agrees not to use the non-public OCC information for any purpose other than as provided under its contract to provide services to the bank.” 

M & A Generals,

 Be Sure to Attend to Your Rear Guard
(Part 1)

Photo by Sgt. 1st Class Kevin Bell

As M&A activity in the banking arena begins to heat up and acquisitive banks begin the new year by pursuing potential target banks, it's important to know that it's not all about the science of the deal.  There are two significant strategic risks that, if not properly attended to, could derail an acquisition – Community Reinvestment Act (CRA) performance and Bank Secrecy Act/Anti-Money Laundering (BSA/AML) compliance.  Both are mandatory consideration factors for regulators under the Bank Merger Act (BMA) for both institutions involved.  While solid due diligence assesses these factors for the target bank, many times these factors are under-appreciated for the acquiring bank itself, resulting in the potential for extended application processing times, conditional approvals, or worse.

In this article, we'll start with the issue of CRA.  Part 2, next week, will discuss BSA/AML and some general compliance management issues for both banks that could present setback risk to a deal.

First, CRA will become a higher profile bank merger consideration now that the effects of the financial crisis are wearing off.   Regulators apply the CRA tests and standards within something called a Performance Context.  One of the factors considered under Performance Context in the CRA regulation is “Institutional capacity and constraints, including the size and financial condition of the bank, the economic climate (national, regional, and local, safety and soundness limitations, and any other factors that significantly affect the bank's ability to provide lending, investments, or services in its assessment area(s)."

Let me be frank, CRA examinations during the economic downturn have been giving significant consideration to performance context, due to the dour economic climate, the stressed financial condition of most banks, and other factors impacting the bank's ability to provide lending, investments, and services in their assessment areas.  Now that the economy is turning up, performance context is changing as we speak and the CRA performance context leeway, provided by regulators in CRA performance evaluations, is now evaporating.

In addition to the challenges presented by evolving changes in CRA Performance Context, the extended examination cycles for CRA examinations can present an additional issue.  Most banks are on a 3-year CRA examination cycle, with adjustments to the cycle for banks with assets $250 million or less – 4 years if the present CRA rating is satisfactory – 5 years if outstanding.   These extended time frames between CRA examinations brings in the possibility that someone protesting the merger application will contend that the examination results are “stale” and do not fairly represent the current CRA performance of the banks involved.  

Be prepared to deal with that for both banks in the transaction.  Particularly in those higher-profile acquisitions which may tend to attract significant public attention.  My recommendation is that you not only tell your bank's story, but control your bank's story.  That doesn't mean distorting it, but it does mean responding immediately to all compliments and complaints, so that you are framing and defining the context of your bank's CRA performance, not someone else.  And all that needs to be documented in the CRA public file.

Make sure you have a fairly recent written CRA self-assessment, that is supported by specific current data on lending, investment, and service efforts (including any changes in assessment areas and performance context).  That self-assessment should also include a fair lending self-assessment as well as any planned CRA performance initiatives.  Don't forget to include staff training efforts and written feedback from community organizations or public officials that the bank may be working with.

In compliance management, the old saw about "a good offense is the best defense" applies.  Diligently attending to compliance responsibilities can be an insurance policy.  Many bankers disparage compliance costs as non-revenue producing expenditures, forgetting that they can help avoid serious out-year expenditures for reimbursement and restitution, civil money penalties, legal fees, reputation damage to the bank and the costs of lost opportunities.

Close the Foreign Parallel Bank Loophole

On December 14, 2012, the Board of Governors of the Federal Reserve System released a Notice of Proposed Rulemaking for Enhanced Prudential Standards and Early Remediation Requirements for Foreign Banking Organizations and Foreign Nonbank Financial Companies.  At 306 pages, it outlines a revised architecture of enhanced prudential standards for Foreign Banking Organizations (FBOs).  Those standards include risk-based capital and leverage requirements, liquidity standards, risk management and risk committee requirements, single-counterparty credit limits, stress test requirements, and a debt-to-equity limit for companies that the Financial Stability Oversight Council has determined pose a grave threat to financial stability.

In addition to implementing Dodd-Frank statutory requirements, the enhanced prudential standards reflect several lessons-learned from the financial crisis:

“Actions by a home country to constrain a banking organization's ability to provide support to its foreign organizations, as well as the diminished likelihood that home country governments of large banking organizations would provide a backstop to their banks' foreign operations, have called into question one of the fundamental elements of the Board's current approach to supervising foreign banking organizations – the ability of the Board, as a host supervisor, to rely on a foreign banking organization to act as a source of strength to its U.S. operations when the foreign banking organization is under stress.

The issues described above-- growth over time in U.S. financial stability risks posed by foreign banking organizations individually and as a group, the need to minimize destabilizing pro-cyclical ring-fencing in a crisis, persistent impediments to effective cross-border resolution, and limitations on parent support-- together underscore the need for enhancements to foreign bank regulation in the United States.”

A handy CliffsNotes-like table, created by the Fed, summarizes the proposed new prudential requirements:

Table 1—Scope of Application for FBOs 

Global assets	U.S. assets	Summary of requirements that apply
> $10 billion and < $50 billion	n/a	• Have a U.S. risk committee.
		• Meet home country stress test requirements that are broadly consistent with U.S. requirements.
> $50 billion	< $50 billion	All of the above, plus:
		• Meet home country capital standards that are broadly consistent with Basel standards.
		• Single-counterparty credit limits28.
		• Subject to an annual liquidity stress test requirement.
		• Subject to DFA (Dodd-Frank Act) section 166 early remediation requirements.
		• Subject to U.S. intermediate holding company (IHC) requirements:.
		○ Required to form U.S. IHC if non-branch U.S. assets exceed $10 billion. All U.S. IHCs are subject to U.S BHC capital requirements.
		○ U.S. IHC with assets between $10 and $50 billion subject to DFA Stress Testing Rule (company-run stress test).
> $50 billion	> $50 billion	All of the above, plus:
		• U.S. IHC with assets >$50 billion subject to capital plan rule and all DFA stress test requirements (CCAR).
		• U.S. IHC and branch/agency network subject to monthly liquidity stress tests and in-country liquidity requirements.
		• Must have a U.S. risk committee and U.S. Chief Risk Officer.
		• Subject to nondiscretionary DFA section 166 early remediation req

What's missing from this proposed enhanced supervisory architecture for foreign banks is the opportunity to subject foreign parallel bank arrangements to supervision by the Board of Governors of the Federal Reserve System.

Foreign parallel banks are bank ownership structures where one or more banks in the United States are affiliated by common ownership, through natural persons or their instrumentalities, with banks in one or more foreign countries.  There are many of these ownership structures spread throughout the United States.  These foreign parallel bank ownership arrangements do not come under the present technical definition of a FBO.  But because of the close ownership ties, they can act like one.  These parallel bank structures can avoid Federal Reserve supervision altogether.

Let me give you one example, two of the largest private-sector banks in Venezuela, Mercantil Servicios Financieros CA (MSF) and Banesco Banco Universal CA (BBU), both have commercial bank affiliates headquartered in Coral Gables, Florida --- Mercantil Commercebank, N.A. and Banesco (USA).  Through intermediate holding companies, Mercantil Commercebank is directly owned by MSF and both MSF and Mercantil Commercebank are subject to full supervisory oversight as a FBO by the Federal Reserve Bank of Atlanta.

Banesco (USA), on the other hand, is beneficially owned by the owner of BBU in Venezuela, Juan Carlos Escotet.  Since there are no direct corporate connections between BBU and Banesco (USA), and since Banesco (USA) is a state non-member bank without a U.S. bank holding company, the Banesco-related entities, BBU and Banesco (USA), are not subject to Federal Reserve FBO oversight. 

So what? you may ask.  Well, it comes down to an issue of fairness and equal treatment for the two U.S. domiciled banks in this example.  In the arena of FBO supervision, home country bank supervisors are expected to have a robust program of comprehensive consolidated supervision (CCS).  The state of that home country supervision program feeds into the Fed's Strength of Support Assessment (SOSA) for each FBO.  If a country has not been conferred CCS status by the Federal Reserve, the Fed will typically disallow any entry of new foreign banks into the United States or constrain significant expansion of existing foreign bank presences in the U.S.  Venezuela does not have CCS status and it is not likely to receive such status in the intermediate future.

So Venezuela's present CCS status impacts bank supervisory deliberations on any significant expansion plans by Mercantil Commercebank, N.A.   Banesco (USA), on the other hand, can expand subject only to State of Florida and the FDIC approvals.  The Fed, its CCS criteria, and its SOSA process being totally out of the picture.  

Structures not subject to Federal Reserve supervision, through the use of foreign parallel banks, is a loophole in the foreign bank supervision fabric.  A loophole that could become more attractive as prudential standards for FBOs become stricter, such as those now being proposed in the Notice of Proposed Rulemaking.  The Foreign Bank Supervision Enhancement Act of 1991 was supposed to centralize the supervision and examination authority over foreign bank operations squarely with the Federal Reserve Board.  The indirect operations of foreign banks, through parallel bank arrangements, have effectively called that into question.

A foreign parallel bank arrangement may not technically look like a duck, dressed in drag like it is; but if it quacks like a duck, the Fed should call it a duck.