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On Tuesday, December 10, 2013, the three federal banking agencies – the Board of Governors of the Federal Reserve System (the “Federal Reserve”), the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation – as well as the Securities & Exchange Commission (“SEC”) and the Commodity Futures Trading Commission, approved a final regulation implementing Section 619 of the Dodd-Frank Act, a statutory provision more generally known as the “Volcker Rule.” The 72-page final regulations1 with the accompanying 892-page explanatory “Preamble”2 were issued nearly three and a half years after the enactment of the Dodd-Frank Act, and more than two years following the proposed regulations issued in October 2011. In conjunction with the adoption of the final regulations, the Federal Reserve issued an order delaying the conformance date for Volcker for an additional year, until July 21, 2015.3
The Volcker Rule and last week’s implementing regulations are significant in a number of respects. The Volcker Rule and its regulations reflect a shift in U.S. regulatory policy towards foreign banks. While historically U.S. banking regulation sought to regulate only those activities of foreign banks that are conducted within offices or affiliates located in the U.S., the Volcker Rule regulates a foreign bank’s activities conducted outside the U.S. that have certain contacts with the U.S. Second, the Volcker Rule represents the first major rollback in bank and bank holding company powers in recent times, following a three-decade period of expansionary authority. The rollback in powers is particularly noteworthy because few other countries have sought to impose similar limitations on their home country banks, and as recognized by Federal Reserve Staff when the final regulations were approved, few countries are expected to adopt Volcker-like limitations in the near future. Thus, foreign banks that become subject to the Volcker Rule will find that U.S. law is more restrictive than home country law. Finally, while the regulations are highly complex, they are also highly dependent on interpretations and positions fleshed out in the supervisory process, and thus the true impact of the Volcker Rule and its regulations will not be understood for some time.
The Volcker Rule applies to “banking entities” – defined by statute to include FDIC-insured depository institutions, bank holding companies, savings and loan holding companies, other entities that control an FDIC-insured depository institution, and foreign banks conducting banking activities in the U.S. (referred to generally as a “foreign banking organization”), as well as any entity affiliated with any of the foregoing.
The Volcker Rule’s statutory language – Section 619 of the Dodd-Frank Act – has three basic elements:
The final regulations issued this week provide further clarity on the application of the Volcker Rule to foreign banking organizations in each of these three areas, and address some (but certainly not all) of the concerns voiced in the comment letter process. Adherence to the Volcker Rule and its final regulations will impose a significant burden on foreign banking organizations and will require substantial effort to ensure full conformance by the July 21, 2015 conformance date.
We have attached a summary of the final Volcker Rule regulations, with a particular emphasis on those provisions applicable to foreign banking organizations. However, for most foreign banking organizations, the most important aspects of the final regulations are as follows:
Broad Scope: Despite requests from commenters to limit the broad geographic scope of the Volcker Rule, the final regulations reiterate the extra-territorial scope of the Volcker Rule that appeared in both the statutory language and in the proposed regulations. Under the final regulations, the Volcker Rule applies banking organizations including “any company that is treated as a bank holding company for purposes of section 8 of the International Banking Act,” as well as any affiliate or subsidiary of the foregoing (entities subject to the Volcker Rule are collectively referred to as “banking entities”). With respect to non-U.S. organizations, a foreign bank that maintains a branch or agency office in the U.S., as well as any foreign bank or foreign company that controls a foreign bank that has a branch or agency in the U.S., is deemed such a “bank holding company.” Also covered by the Volcker Rule is any foreign company that controls an FDIC-insured bank or thrift. Finally, any affiliates of these entities are covered as well. In sum, a non-U.S. bank that has a branch or agency in the U.S., any company or bank that controls such a non-U.S. bank, any non-U.S. company that controls an FDIC-insured bank or thrift, and any of their respective affiliates,4 wherever located in the world, are all considered “banking entities” and each and every such entity is subject to the Volcker Rule.
As a result of this sweeping scope, the Volcker Rule covers nearly 150 top-tier foreign banking organizations headquartered in more than 50 countries outside the U.S., and every one of their affiliates, wherever located.
Proprietary Trading - Exemption for Trading in Foreign Government Obligations: The Volcker Rule prohibits a banking entity from engaging in “proprietary trading” in “financial instruments” (generally, swaps and securities) subject to various exemptions (including exemptions for market-making, underwriting, risk-mitigating hedging, and trading outside the United States). The proposed regulation contained an exemption for trading in U.S. government obligations (including certain state and municipal obligations), but was silent with respect to whether an exemption was available for foreign banks or U.S. banks with respect to non-U.S. government obligations. This issue attracted criticisms during the public comment process, including comment letters from non-U.S. banking regulators.
The final regulations permit a foreign banking organization (including the U.S. branches of the foreign bank or any U.S. subsidiary) to trade in securities that are the obligations of, issued by, or guaranteed by its home country (including any agency or political subdivision, and any multinational central bank of which that country is a member) under which the foreign bank is organized. With respect to a foreign bank that operates in multiple jurisdictions through branches, it is important to note that this exemption allows only trading in the obligations of the home country of the bank – not the host country where the branch is located. The foreign banking organization may, however, trade in sovereign obligations of the host country (or, for that matter, any other instrument), provided the trading activity is structured to comply with the exemption for trading outside of the United States (discussed immediately below).
Proprietary Trading - Exemption for Trading Outside of the United States: The Volcker Rule’s statutory language exempts from the proprietary trading ban those trading activities conducted by foreign banking organizations that occur “solely outside of the United States,” but the statute did not define the phrase. The proposed regulations define that phrase, and in doing so, would have imposed a number of conditions for such activities to be deemed “solely outside of the United States,” including the requirements that no counterparty to the trade may be a resident of the United States, and that the trade may not be “executed” using U.S. execution or clearing facilities (which would have effectively prohibited trading in most U.S. issuer securities. These conditions attracted criticisms regarding their impracticality in the comment process.
The final regulations soften these conditions somewhat; the prohibition on use of U.S. execution facilities was dropped entirely, and certain U.S. persons are permitted to be counterparties.
Under the final regulations, a transaction is considered to satisfy the exemption for transactions “solely outside of the United States” if the following conditions are met:
Notwithstanding this last condition, a purchase or sale may be “with or through” a U.S. entity if conducted “with or through” (i) the foreign operations of a U.S. entity, (ii) a U.S. entity that is an unaffiliated market intermediary (i.e., a U.S. registered broker-dealer, swap dealer, securities-based swap dealer, or futures commission merchant) acting as principal and the transaction is promptly cleared, or (iii) a U.S. entity that is an unaffiliated market intermediary acting as agent and the transaction is conducted anonymously on an exchange and promptly cleared and settled.
As set forth in the final regulations, this exemption enables a foreign banking organization to engage in proprietary trading notwithstanding the Volcker Rule, provided that the transaction is arranged, negotiated, executed, booked, and financed by a banking entity located outside the U.S. (i.e., not its U.S. branch) and not directly or indirectly by a U.S. entity, no U.S. personnel of the foreign banking organization (including its U.S. branch personnel) is involved in the arranging, negotiation, execution or decision-making of the transaction, and the counterparty is not a U.S. entity other than certain qualifying market intermediaries or the foreign operations of a U.S. banking organization.
Covered Funds - Foreign Regulated Funds: The Volcker Rule’s statutory language and the proposed regulations define a “covered fund” solely with respect to its status under the U.S. Investment Company Act of 1940, i.e., whether the fund would be an “investment company” under the Investment Company Act of 1940 but for the exceptions set forth in Sections 3(c)(1) or (3(c)(7) (related to funds with fewer than 100 investors or funds with only qualified purchasers). If a fund is a covered fund, then no banking entity is permitted to acquire or retain an ownership interest in, or sponsor, the covered fund unless an exception applies.
Because the covered fund definition is based solely on a fund’s status under the Investment Company Act, it was unclear how to treat a fund organized outside of the United States that would not be available to U.S. investors, because such funds are not subject to the Investment Company Act at all. Thus, there was a possibility that funds that were fully regulated abroad and authorized for sale to retail investors – such as a UCITS – could be considered a “covered fund.”
The final regulations create an exemption for foreign public funds, i.e., issuers organized or established outside the U.S. and authorized to offer and sell ownership interests on a retail basis in the issuer’s home jurisdiction (e.g., a UCITS), and which sells such ownership interests predominantly (85% or more) through one or more public offerings outside the U.S. Funds satisfying this exception are not considered “covered funds” and foreign banking organizations are not barred from acquiring or retaining an ownership interest in, or sponsoring, a foreign public fund.
It should be noted, however, that the final regulations’ compliance provisions require foreign banking organizations to maintain records documenting the basis for being able to rely on this exemption (and certain of the other exemptions from the covered fund definition).
Covered Funds - Foreign Equivalent Funds: To prevent evasion of the Volcker Rule, the proposed regulations contained a provision that required banking organizations (including apparently foreign banking organizations) to determine whether any fund that is organized outside of the United States would be a covered fund if it were organized and offered under the laws of the United States or its shares were offered to U.S. residents; if such a fund would be a covered fund, the fund is then deemed a covered fund for purposes of the Volcker Rule. This provision would have required foreign banking organizations to speculate how a fund purposefully established outside the U.S. and not offering its shares to U.S. residents would be treated if the fund were established in the U.S. or its shares were offered to U.S. residents—a very challenging, hypothetical mental exercise.
The final regulations abandoned this requirement with respect to foreign banking organizations. Foreign banking organizations are free to sponsor, or acquire a retain an ownership interest in, a covered fund that is organized outside the U.S. (provided certain requirements, discussed below, are satisfied), without having to speculate how the fund would be regulated if it were organized in, or issuing into, the U.S. It is important to note that this foreign equivalent funds concept was retained (in somewhat modified form), however, for U.S. banking organizations.
Covered Funds - Activities Outside of the United States: With respect to foreign banking organizations, the Volcker Rule’s statutory language permits acquiring or retaining an ownership interest in, or sponsoring, a covered fund if such activities are conducted “solely outside of the United States.” In the proposed rule, the regulators imposed a number of conditions for such activities to be deemed “solely outside of the United States.”
The final regulations’ requirements are very similar to those requirements that were proposed, and not much relief was granted notwithstanding criticisms and concerns voiced in the comment process. In the final regulations, for covered fund activities by a foreign banking organization to be considered “solely outside of the United States,” the following conditions must be satisfied:
The final regulations define the phrase “offered for sale or sold to,” a phrase that first appeared in the proposed regulations but was not defined. The final regulations state that an ownership interest in the covered fund is “offered for sale or sold” to a resident of the U.S. only if it is sold or has been sold pursuant to an offering that “targets” residents of the U.S. While “targets” is not defined in the final regulations, the accompanying Preamble sets forth guidelines of what may be necessary to ensure that an offering does not “target” U.S. residents, including prominent disclosures in the offering materials and controls that prevent distribution of offering materials to U.S. residents.
The accompanying Preamble makes it clear that reliance on the outside of the United States exemption does not preclude a foreign banking organization from engaging in other activities with respect to the covered fund using U.S. subsidiaries or U.S. personnel, provided that the requirements listed above are met. For example, a foreign banking organization may use its U.S. subsidiary or personnel to serve as the covered fund’s investment adviser or to provide administrative services for offshore affiliates that serve as the covered fund’s sponsor. The Preamble also states that tiered arrangements, e.g., arrangements in which a foreign banking organization sponsors an offshore fund, which in turn sponsors or invests in a U.S. fund, may be problematic if the offshore fund was organized for the purpose of investing in a U.S. fund.
The final regulations also make it clear that existing covered fund arrangements must be brought into compliance by the end of the conformance period (or, if either or both of the two one-year extensions are granted, by the end of the extension period), and that there is no grandfathering for pre-existing covered fund arrangements. Thus, if a foreign banking organization has existing covered fund arrangements that are inconsistent with this outside of the United States exemption – for example, because a U.S. subsidiary acts as a general partner or because the fund either has U.S. investors or is not closed to U.S. investors – the foreign banking organization may need to take steps to address these issues by the end of the conformance period (or any extended conformance period).
Covered Funds – Super 23A & Super 23B Restrictions on Transactions with Certain Covered Funds: The Volcker Rule establishes special restrictions on transactions between a covered fund and any banking entity that serves as an investment manager, investment adviser, organizer and offeror, or sponsor with respect to that covered fund (or transactions between the fund and any affiliate of such banking entity) – regardless whether the banking entity has an ownership interest in the fund. These provisions are nicknamed “Super 23A” and “Super 23B” because they incorporate by reference provisions found in Sections 23A and 23B of the Federal Reserve Act.
These aspects of the Volcker Rule, which were incorporated into the proposed regulations with little change from the statutory language, posed significant concern for foreign banking organizations because they were not subject to any geographic restriction. A foreign banking organization (and/or its affiliates), wherever located, that serve as an investment manager, investment adviser, organizer and offeror, or sponsor to a covered fund appear to be subject to the Super 23A and Super 23B restrictions, even if that covered fund is outside the U.S. and has no U.S. investors.
The final regulations do not expressly limit the seemingly global scope of Super 23A and Super 23B. At most, the final regulations contain an express exemption for acquiring an “ownership interest in a covered fund in accordance with … the requirements of … §__.13 of this subpart.” Section __.13(b) authorizes covered fund activities that are “outside of the United States” (as explained earlier). Although not explained further in the final regulations or the accompanying Preamble, this exemption appears to enable a foreign banking organization to acquire and retain an ownership interest in a fund that satisfies the outside of the United States exemption, notwithstanding the restrictions of Super 23A. For example, a foreign banking organization could acquire an ownership interest in a covered fund for which an affiliate is the “organizer and offeror,” the investment advisor, the investment manager, or sponsor, provided the outside of the United States conditions are met. However, it is not clear that this exemption would permit Super 23A transactions other than the acquisition of an ownership interest – such as a loan to the covered fund, a purchase of assets from the fund, or a guarantee issued on behalf of the fund.
However, other language in the Preamble suggests that the Agencies may have intended to treat a fund meeting the conditions of the Outside of the United States exemption as not being a “covered funds” for purposes of the Volcker Rule, including with respect to Super 23A and Super 23B. In connection with the Agencies’ explanation of the exemption for “organized and offered” funds, the Preamble states:
As described in more detail below, a number of commenters expressed concern about applying the requirements of [the organized and offered exemption] and the final rule outside of the United States, including with respect to foreign public funds organized and offered by foreign banking entities, particularly in situations where requirements in foreign jurisdictions may conflict with the requirements of [the Volcker Rule] and implementing regulations. The Agencies believe that many of the concerns raised with respect to applying [the organized and offered exemption] and the proposed rule outside the United States have been addressed through the revised definition of covered fund described above and revisions to the exemption provided for activities conducted solely outside the United States. In particular, the revised definition of covered fund makes clear that a foreign fund offered outside the United States is only a covered fund under specified circumstances with respect to a banking entity that is, or is controlled directly or indirectly by a banking entity that is, located in or organized or established under the laws of the United States or of any State…. Consequently, a foreign banking entity may invest in or organize and offer a variety of funds outside of the United States without becoming subject to the requirements of [the organized and offered exemption], such as the name-sharing restriction or limitations on director and employee investments.6
A similar discussion appears later with respect to the scope of the compliance provisions:
As discussed in greater detail above in Part IV.B.1, the final rule has been modified to more narrowly focus the scope of the definition of covered fund as it applies to foreign funds. Pursuant to the definition of a covered fund in §__.10(b)(1), a foreign fund may be a covered fund with respect to the U.S. banking entity that sponsors the fund, but not be a covered fund with respect to a foreign bank that invests in the fund solely outside the United States.7
These discussions suggest that any offshore fund that complies with the outside of the United States exemption isn’t a “covered fund” at all; if so, a foreign banking organization and its affiliates are free to engage in transactions with that fund notwithstanding the limitations of Super 23A, even if the foreign banking organization is the “organizer and offeror,” the investment advisor, the investment manager, or sponsor of that fund. Yet, despite the favorable language found in the Preamble, there is no language in the final regulations that expressly confirms this.
Trade Metrics Reporting: Although not required by the Volcker Rule itself, the proposed regulations required banking organizations that engage in proprietary trading activity (including proprietary trading activity that meets certain of the exemptions, such as market-making, underwriting, or transactions solely outside the U.S.) to provide the banking agencies with seventeen trading metrics each month, compiled at the trading desk and business unit levels and calculated generally on a daily basis. The proposal contained two tiers of metrics based on the volume of trading activity, with entities having greater trading activity subject to greater reporting. However, because the thresholds were based on global trading activity, the trade metrics reporting obligation would in theory apply to foreign banking organizations that have large trading operations but little or no trading in or with the U.S.
The final regulations modify this concept in several important regards. First, the final regulations specify that, with respect to a foreign banking organization, the metrics are calculated based solely on the trading assets and liabilities of its “subsidiaries, affiliates, branches and agencies of the foreign banking entity operating, located or organized in the United States.” Thus, trading activities by a foreign banking organization’s non-U.S. affiliates are not taken into account when calculating the thresholds.
Second, the final regulations provide that these trade metrics reporting thresholds will be reduced over time, and will require monthly reporting of trading metrics for the highest thresholds and quarterly reporting of metrics for the lower thresholds. Under this sliding scale concept, foreign banking organizations with trading assets and liabilities of U.S. operations of $50 billion or more must begin trade metrics reporting beginning on June 30, 2014 on a monthly basis, 30 days in arrears (but becoming 10 days in arrears in January 2015); foreign banking organizations with trading assets and liabilities of U.S. operations of $25 billion or more must begin trade metric reporting on April 30, 2016, on a quarterly basis, 30 days in arrears; foreign banking organizations with trading assets and liabilities of U.S. operations of $10 billion or more must begin trade metric reporting on December 31, 2016, on a quarterly basis, 30 days in arrears.
Third, the final regulations reduce the number of metrics from seventeen to seven. If a foreign banking entity is subject to trade metric reporting, it is required to provide these seven trading metrics data on its proprietary trading activities subject to the Volcker Rule under the various exemptions (such as market-making, underwriting, and trading in U.S. or foreign government obligations), and it is permitted – not required – to include information on its trading activities conducted pursuant to the “outside of the United States” exemption.
Compliance: Compliance provisions were not specifically mandated in the statutory language of the Volcker Rule. However, the proposed regulations contained very burdensome compliance requirements. The proposed regulations established a two-tiered approach towards compliance, with organizations having a larger volume of Volcker-related activities (i.e., trading and covered funds) being subject to much more detailed compliance obligations. The thresholds for this two-tiered approach once again were based on global activities.
For foreign banking organizations, the final regulations abandon the concept of global thresholds and instead look only to U.S. operations. Moreover, the thresholds are no longer based on the volume of Volcker-related activities but rather simply on U.S. assets.
Under the final regulations, foreign banking organizations with consolidated assets of U.S. operations of less than $50 billion are permitted to adopt standard compliance procedures addressing six core elements. Foreign banking organizations with consolidated assets of U.S. operations of $50 billion or more are required to adopt detailed, “enhanced” compliance procedures consistent with Appendix B of the final regulations. In addition, any banking organization that is required to report trading metrics (including, in theory, a foreign banking organization) is also required to adopt the “enhanced” compliance procedures. It is important to remember that the trade metrics thresholds reduce over time, such that foreign banking organizations that have U.S. trading assets and liabilities of $10 billion or more will eventually be obligated to adopted enhanced compliance procedures, regardless of amount of their consolidated U.S. assets.8 Banking entities engaged in no activities covered by the Volcker Rule (other than trading in U.S. government obligations) are required to adopt compliance procedures only before engaging in activities covered by the Volcker Rule, but otherwise are not required to adopt Volcker compliance procedures.
The compliance provisions apply to any entity in the foreign banking organization that engages in at least some Volcker-related activities. The final regulations state that the “terms, scope and detail of the compliance program shall be appropriate for the types, size, scope and complexity of activities and business structure of the banking entity.” As discussed earlier, there is language in the Preamble suggesting that funds operating under the outside of the United States exemption are not, insofar as a foreign banking organization is concerned, a “covered fund” and therefore no compliance program would be required with respect to these fund activities.
For any banking entity with consolidated assets of more than $10 billion (including foreign banking organizations), the final regulations’ compliance provisions contain a new documentation requirement with respect to funds activities. The $10 billion threshold appears to be based on global consolidated assets, not U.S. assets, and thus will apply to many foreign banking organizations. These banking entities are required to retain records documenting the legal basis that any fund it sponsors or acquires or retains an ownership interest is not a covered fund based on either the Investment Company Act exclusions or certain of the exemptions found in the final regulations.
Finally, with respect to banking entities that are subject to the “enhanced” compliance procedures, the final regulations adopt a “CEO attestation” requirement. Under this provision, the CEO of the banking entity must annually attest to the appropriate federal banking agency “that the banking entity has in place processes to establish, maintain, enforce, review, test and modify the compliance program ... in a manner reasonably designed to achieve compliance with” the Volcker Rule and the final regulations. The regulations provide that “in the case of a U.S. branch or agency of a foreign banking entity, the attestation may be provided for the entire U.S. operations of the foreign banking entity by the senior management of the [U.S.] operations of the foreign banking entity who is located in the [U.S.]” The final regulations are unclear as to whether this provision allows the senior management of the U.S. operations to also provide the attestation for any non-U.S. operations of the foreign banking organization engaged in Volcker Rule activities or even whether such CEO attestation will be required.
Effective Date: Although materials accompanying the final regulations stated that the final regulations’ effective date is April 1, 2014, this is somewhat misleading. Due to the Federal Reserve’s extension of the conformance period for an additional year, full conformance with the Volcker Rule’s provisions is not required until July 21, 2015. Foreign banking organizations are permitted to request up to two one-year extensions; applications for the first extension period must be filed by mid-January 2015.
Although conformance is not required until July 21, 2015, a foreign banking organization is “expected to engage in good-faith efforts, appropriate for its activities and investments, that will result in the conformance of all of its activities and investments to the requirements of [the Volcker Rule and the Final Regulations] by no later than the end of the conformance period.”9 In that regard, the banking agencies expect all banking entities – including foreign banking organizations – to develop conformance plans for bringing their activities and investments into conformance with the Volcker Rule and will likely begin reviewing those conformance plans in 2014. During the conformance period, banking entities “should not expand [existing] activities and make investments … with an expectation that additional time to conform those activities or investments will be granted.” It seems likely that, beginning no later than April 1, 2014 (i.e., the effective date of the final regulations), the agencies will expect banking entities to begin these good faith efforts and to avoid expanding activities or making investments that cannot be brought into compliance by July 21, 2015.
While the conformance period delays compliance with the Volcker Rule’s restrictions until July 2015, it does not suspend the obligation to provide trading metrics. Foreign banking organizations whose U.S. trading assets and liabilities exceed the relevant thresholds must begin reporting on the relevant threshold date, regardless of the existence of the conformance period or any extensions granted.
* * * * *
A number of unresolved questions remain regarding the Volcker Rule and its final regulations. Moreover, many aspects of the Volcker Rule are left to later supervisory interpretation by the banking agencies – such as the precise scope of activities permitted under the market-making and risk-mitigating exemptions, and the scope of the compliance program needed to satisfy the regulations’ compliance provisions. Many of the unresolved questions will hopefully be resolved in the coming months as banking entities begin to construct their conformance plans and these plans are reviewed by the agencies. The full impact of the Volcker Rule, however, will not likely be understood for several years, or examination cycles, afterwards.
The attached PDF contains a more detailed explanation of the Volcker Rule. Inasmuch as the Volcker Rule is highly complex, the explanation is by necessity only a high-level summary.
1 For the text of the Final Regulations see http://www.federalreserve.gov/aboutthefed/boardmeetings/final-common-rules-20131210.pdf.
2 For the text of the Preamble, see http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20131210a2.pdf
3 For the text of the Conformance Period Order, see http://www.federalreserve.gov/newsevents/press/bcreg/bcreg20131210b1.pdf
4 Affiliate” status is determined using the Bank Holding Company Act control test (i.e., holding 25% or more of a voting class, being a GP, controlling the selection of a majority of the directors, trustees, or managing members, or otherwise having a “controlling influence”).
5 Based on urgings by commenters, the final regulation adopts the same definition of “resident of the United States” as found in the SEC’s Regulation S. Thus, foreign issuers will be able to use a single definition of “resident of the United States” when structuring an offering to comply with U.S. securities laws and the Volcker Rule.
6 See Board of Governors of the Federal Reserve System, Prohibition and Restrictions on Proprietary Trading and Certain Interests in, and Relationships with, Hedge Funds and Private Equity Funds (Dec. 10, 2013) at pp. 641-42 (emphasis added).
8 Banking entities with global (not U.S.) consolidated assets of $10 billion or less may adopt Volcker compliance procedures by including appropriate requirements in existing policies and procedures