OFAC Imposes Additional Venezuelan Sanctions

The U.S. Treasury (“Treasury”) Department Office of Foreign Assets Control (“OFAC”) designated five officials affiliated with “illegitimate former” Venezuelan President Nicolas Maduro, pursuant to Executive Order 13692. According to OFAC, these five individuals “continue to repress democracy and democratic actors in Venezuela and engage in significant corruption and fraud against the people of Venezuela.” The individuals include Manuel Salvador Quevedo Fernandez, the “illegitimate President” of Venezuela’s state-owned oil company, Petróleos de Venezuela, S.A.

Treasury stated that it may continue to sanction officials “who have helped the illegitimate Maduro regime repress the Venezuelan people.” As a result of OFAC’s action, all property and interests in property of the designated individuals subject to U.S. jurisdiction are now blocked, and U.S. persons generally are prohibited from engaging in any dealings with them.

Sargen: How Tariffs and China’s Slowdown Impact US Companies

As U.S. companies report fourth quarter earnings, a growing number have cited China’s slowdown as adversely impacting their businesses.  The most recent include industry bellwethers such as Apple, Caterpillar, and Nvidia.  In prior reports, multinationals such as Alcoa, Coca-Cola, Ford, GE, Harley-Davidson, and Whirlpool stated their earnings were being hit by higher tariffs on imports from China.

This list, moreover, is likely to grow if China slows further and/or tariffs on Chinese imports are increased.  However, this begs two questions: (i) Why is China’s economy softening; and (ii) Will the government be able to stabilize growth as it did in 2016?

One of the challenges investors confront is to assess whether China’s slowdown is primarily cyclical or secular.  Its growth rate has slowed steadily throughout this this decade, from about 10% in 2010 to 6.6% last year, the lowest in three decades.  In dissecting the recent slowdown, investors need to disentangle the effect of higher tariffs on Chinese imports from the impact of structural changes inside China.

There is general agreement that last year’s slowdown coincided with tariffs being imposed on 10% of Chinese goods imported to the U.S. during the first half of 2018.  The economy weakened further in the second half, when the list was extended to cover one half of imports from China.  Accordingly, investors believe a resolution of the trade dispute is critical to stabilize China’s economy.

Beyond this, China’s potential growth rate is decelerating for structural reasons. The country’s economic miracle was founded on agricultural workers in rural areas migrating to urban areas along the coast with higher-productivity manufacturing jobs.  But this process has become more challenging as wages in manufacturing have increased and unit labor costs have surged. Consequently, some economists believe China confronts a “middle income trap.”

Amid declining productivity growth, China’s government has relied increasingly on fiscal stimulus and credit expansion to achieve its growth target of 6.0%-6.5%.  But this has also resulted in a doubling of China’s overall debt burden from about 150% of GDP before the GFC in 2008 to 300% currently.  The problem with this strategy is it is not viable, as more and more credit is required to support each unit of output.  The reason: Much of the credit expansion has gone to SOEs, some of which the IMF labels as “zombies” – or firms that pile on debt but do not contribute positive value added.

Faced with this predicament, China’s policymakers pursued several measures last year to bolster the economy.  They included lowering short term interest rates by more than 200 basis points, allowing the yuan/dollar exchange rate to decline by 10%, while also expanding credit and lowering tax rates.  Similar actions were undertaken during China’s slowdown in 2015-2016, which proved effective in bolstering the economy.

Thus far, however, their impact is not readily apparent.  Auto sales, for example, declined in November by nearly 14% over a year ago, and Apple’s recent public filing indicated softness in consumer spending on electronics.  China’s imports plummeted in December, and exports also appear headed for a fall based on recent purchasing manager surveys and weakness in Asia and Europe.

What is clear is China’s policymakers are prepared to take additional actions to keep economic growth above the 6% threshold.  The central bank, for example, announced a one percent reduction in reserve requirements, and the government is boosting spending and lowering taxes. What is unclear is whether such action will be as effective as in the past due to the country’s rising debt burden.

The wildcard is whether an agreement on trade can be reached by the March 1 deadline.  While both sides wish to do so, the underlying issues are complex.  If the disagreement were simply about the size of the bilateral trade imbalance, the issue would be resolved, as China is willing to boost imports from the US and could direct SOEs to do so. However, the more difficult issues relate to violations of intellectual property and subsidization of businesses by the Chinese government, which the US opposes.

The most likely outcome is a temporary truce will be reached, which would bolster world equities for a while.  However, because a lasting agreement is harder to achieve, officials may in effect opt to “kick the can down the road.”

The outcome will have an important bearing on global economies.  While the US economy has withstood the impact of China’s slowdown thus far, a growing number of US companies are feeling the impact as noted previously. Furthermore, there has been a significant downward revision to earnings expectations by Wall Street analysts over the past six months. They are now calling for S&P 500 EPS growth of 8.1% in 2019 from more than 20% last year.  Yet, some observers believe the results will be weaker.

Ultimately, the market’s outcome will depend on whether China’s slowdown can be arrested by policy action.  If so, equity markets are likely to rally.  If not, they are likely to stay volatile, as the impact of a permanent slowdown has not been priced into markets.

NYDFS Superintendent Reminds Firms of Final Implementation Date for Cybersecurity Regulation

New York State Department of Financial Services (“NYDFS”) Superintendent Maria Vullo reminded NYDFS-regulated entities that they must be in full compliance with the requirements of the NYDFS’s cybersecurity regulation by March 1, 2019.

The NYDFS cybersecurity regulation requires banks, insurance companies and other institutions regulated by the NYDFS (“covered entities”) to implement a cybersecurity program to protect consumer data (see previous coverage). The NYDFS cybersecurity regulation went into effect on March 1, 2017, subject to a two-year implementation timeline. The final step in the implementation timeline requires covered entities to adopt policies governing arrangements with third-party providers that have access to firms’ nonpublic information. The NYDFS also reminded firms to file a certificate of compliance for the prior calendar year by February 15, 2019.

Lofchie Comment: As previously described, the NYDFS rules are open-ended, complex and burdensome and will result in creating many new ways for the government to collect fines when something goes wrong.

OFAC Designates Venezuelan Oil Sector Company for Sanctions

The U.S. Treasury (“Treasury”) Department Office of Foreign Assets Control (“OFAC”) sanctioned Petróleos de Venezuela, S.A. (“PdVSA”), the Venezuelan state-owned oil and natural gas company, pursuant to Executive Order (“EO”) 13850.

The move comes less than a week after the United States recognized opposition politician Juan Guaidó as the interim leader of Venezuela. In general – and except as provided in the General Licenses described below – as of January 28, 2019, the property and interests in property of PdVSA and its majority-owned subsidiaries are blocked, and U.S. persons are prohibited from having dealings with them.

The action to designate PdVSA followed a determination made by Treasury Secretary Steven Mnuchin, in consultation with Secretary of State Michael Pompeo, that persons who operate in the oil sector of the Venezuelan economy may be subject to sanctions. While the addition of PdVSA to OFAC’s Specially Designated Nationals and Blocked Persons List (“SDN List”) imposes broad prohibitions on dealings with the Venezuelan state-owned oil company, OFAC simultaneously issued seven General Licenses that authorize certain transactions with PdVSA and its subsidiaries, including U.S.-based refiner and retailer CITGO Holding, Inc. (“CITGO”) and its corporate parent, PDV Holding, Inc. (“PDVH”).

Most importantly, General License 7 and General License 12 permit the continued importation into the United States of Venezuelan oil through April 28, 2019, provided that any payments to PdVSA or its majority-owned subsidiaries – other than CITGO and PDVH – be made into a blocked, interest-bearing account located in the United States. Because the U.S. government previously prohibited CITGO from transferring profits to PdVSA, the cumulative effect of the January 28 sanctions is to prevent Venezuelan oil profits earned in the United States from flowing back to PdVSA and, by extension, the regime of Nicolás Maduro.

Separately, President Donald J. Trump signed a new Executive Order expanding the definition of “Government of Venezuela” specifically to include PdVSA, as well as “persons that have acted, or have purported to act, on behalf of the Government of Venezuela, including members of the Maduro regime.”

Novick on Financial Industry Transitions

Barbara Novick (BlackRock Vice Chairman and CFS Advisory Board Member) discussed financial industry transitions at the recent CFS Global Markets Workshop.

Presentation highlights include:

– Indexed equity strategies remain relatively small,
– Challenges of applying macroprudential tools to market finance,
– Potential risks to the US financial system from the future of Libor to bondholder rights to pension underfunding, among others.

For accompanying slides:
www.CenterforFinancialStability.org/research/BNovick-slides11-29-18.pdf

President Signs Executive Order to Impose Sanctions in the Event of Foreign Interference in U.S. Elections

President Donald J. Trump signed an Executive Order (“E.O.”), dated September 12, 2018, directing intelligence and law enforcement agencies to assess foreign interference in U.S. elections, and authorizing sanctions against foreign persons found to have engaged in, assisted or otherwise supported such activity.

In Section 1 of the E.O., President Trump established a multi-step process for assessing and evaluating the involvement of a “foreign government, or any person acting as an agent of or on behalf of a foreign government” in actual or attempted interference in a U.S. election. The initial assessment, to be conducted by the Director of National Intelligence in consultation with other agencies, is to be done within 45 days after the conclusion of an election. During the subsequent 45-day period, the Attorney General and the Secretary of Homeland Security, in consultation with others, are to deliver to the President, the Secretary of State, the Secretary of the Treasury and the Secretary of Defense a report evaluating (i) the extent to which foreign interference materially affected election infrastructure, vote tabulation or the timely transmission of results, and (ii) the extent to which such interference materially affected the security or integrity of infrastructure related to political candidates, campaigns, and other political organizations.

Section 2 of the E.O. authorizes the imposition of blocking sanctions against foreign persons determined (i) to have directly or indirectly engaged in, sponsored, concealed or otherwise been complicit in foreign interference in a U.S. election; (ii) to have materially assisted, sponsored or otherwise supported such interference, or to have supported any person sanctioned in connection with such interference; or (iii) to be owned or controlled by, or to have acted or to have purported to act for or on behalf of, any person sanctioned under the E.O. Section 2 also notes that two Obama-era E.O.s remain in effect, which provide additional authorities for sanctions in connection with election-related and certain other “malicious cyber-related activities.”

Section 3 of the E.O. directs the Secretary of the Treasury, in consultation with others, to recommend to the President a range of potential sanctions – from complete blocking, to restrictions on the extension of credit, to a prohibition on dealings in equity or debt – against “the largest business entities licensed or domiciled in a country whose government authorized, directed, sponsored, or supported election interference,” including at least one entity from each of the finance, defense, energy, technology and transportation sectors.

CFTC Opens Registration for First FinTech Conference

Registration for the upcoming CFTC Conference: “FinTech Forward 2018: Innovation, Regulation and Education” is now open. The conference, which is scheduled to take place from October 2, 2018 to October 4, 2018, will feature CFTC Chair Christopher J. Giancarlo and U.S. Representative Austin Scott (R-GA), among others.

The conference will focus on significant tech-driven developments in the financial markets. Participants will discuss (i) the impact that new technologies may have on markets and customers, and (ii) what regulators ought to do to help identify emerging opportunities, challenges and risks, as well as to better educate market participants.

International Regulators Launch “Global Financial Innovation Network”

Several international regulatory agencies collaborated in the creation of the “Global Financial Innovation Network” (“GFIN”). The new network will focus on regulatory issues related to emerging technologies. There are 11 regulatory agencies in the new network including the Consumer Financial Protection Bureau and the UK’s Financial Conduct Authority.

In a draft consultation document, the agencies explained three major functions of the initiative: (i) information- and knowledge-sharing among regulators, (ii) collaboration in exploring major policy questions and (iii) “cross-border trials” instituted to aid companies as they deal with multi-jurisdictional regulatory challenges. The network is intended to serve as a resource for FinTech companies navigating the complicated web of international regulation. The regulators anticipate that GFIN will increase the speed at which innovative products are able to reach international markets. They also argue that the GFIN will promote transparency and investor protection.

The GFIN proposed the following as its organizational mission statement:

“The GFIN is a collaborative policy and knowledge-sharing initiative aimed at advancing areas including financial integrity, consumer wellbeing and protection, financial inclusion, competition and financial stability through innovation in financial services, by sharing experiences, working jointly on emerging policy issues and facilitating responsible cross-border experimentation of new ideas.”

The GFIN is requesting feedback on its proposed objectives, functions and structure. Comments must be submitted by October 14, 2018.

GAO Calls for Urgent Action to Address Nationwide Cybersecurity Challenges

In a study conducted to update its identification of information security risk areas, the Government Accountability Office (“GAO”) identified four primary cybersecurity challenges and ten corresponding actions that the federal government and other entities must undertake to address them.

The four challenges are (i) establishing a comprehensive cybersecurity strategy and performing effective oversight, (ii) strengthening federal systems and information, (iii) safeguarding cyber critical infrastructure, and (iv) protecting privacy and sensitive data.

The four actions needed to address the first challenge are:

  • developing a more exhaustive federal strategy for national cybersecurity;
  • mitigating global supply chain risks;
  • addressing cybersecurity workforce management challenges (since the federal government faces challenges with respect to ensuring that the nation’s cybersecurity workforce has the necessary skills); and
  • ensuring the security of emerging technologies (such as artificial intelligence and the Internet of Things).

The three actions outlined to deal with the second challenge are:

  • improving the implementation of government-wide cybersecurity initiatives;
  • addressing weaknesses in federal agency information security programs; and
  • bolstering the federal response to cyber incidents.

To confront the third challenge, the GAO identified the need for a more robust federal role in protecting the cybersecurity of critical infrastructure (such as electricity grids and telecommunications networks).

With regard to tackling the fourth challenge, the GAO called for improving federal efforts to protect privacy and sensitive data, limiting the collection and use of personal information, and ensuring that personal information is obtained with appropriate knowledge or consent.

Since 2010, the GAO has made over 3,000 recommendations to federal agencies that relate to mitigating cybersecurity weaknesses. As of July 2018, approximately 1,000 recommendations still need to be implemented.

Guiding Principles for Cyber Risk Governance: Principles for Directors in Overseeing Cybersecurity

The purpose of this document is to provide boards of directors a set of Guiding Principles to enable the implementation of an effective cybersecurity program. A director should understand the full range of cyber risks facing his or her company and encourage management to develop appropriate strategies tailored to the company’s operating environment, risk profile, and long-term goals.

The specific needs of any effective cyber program include careful planning, smart delegation, and a system for monitoring compliance — all of which directors should oversee. It’s no longer a question of whether a company will be attacked but more a question of when this will happen — and how the organization is going to prevent it. Smart network surveillance, early warning indicators, multiple layers of defense, and lessons from past events are all critical components of true cyber resilience. When things go wrong, whether in a major or minor way, the ability to quickly identify and respond to a problem will determine the company’s ultimate recovery.

Cybersecurity cannot be guaranteed, but a timely and appropriate reaction can.

Longer term, the board should understand and consider the strategic business implications of cybersecurity, foster the right company culture surrounding security, and encourage the integration of cyber risk management practices into other governance and approval processes. In essence, the board should consider cybersecurity as a managerial issue, not just as a technical one.

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