Exhibit 99.1
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UNITED STATES OF AMERICA
BEFORE THE
BOARD OF GOVERNORS OF THE FEDERAL RESERVE SYSTEM
WASHINGTON, D.C.
NEW YORK STATE BANKING DEPARTMENT
NEW YORK, NEW YORK
__________________________________________
Written Agreement by and among )
)
THE BANK OF NEW YORK ) Docket No. 06-009-WA/XX-XX
New York, New York )
)
FEDERAL RESERVE BANK OF NEW YORK )
New York, New York )
)
and )
)
NEW YORK STATE BANKING DEPARTMENT )
New York, New York )
__________________________________________)
WHEREAS, The Bank of New York, New York, New York (the "Bank"), a
New York state-chartered bank that is a member of the Federal Reserve
System, is taking steps to address deficiencies relating to its
compliance with applicable federal and state anti-money laundering
("AML") laws, rules, and regulations, including the Bank Secrecy Act
("BSA"), 31 U.S.C. 5311 et seq., the rules and regulations issued
thereunder by the U.S. Department of the Treasury (31 C.F.R. Part 103);
the AML provisions of Regulation H of the Board of Governors of the
Federal Reserve System (the "Board of Governors") (12 C.F.R. 208.62 and
208.63); and regulations of the New York State Banking Department (the
"Department") (3 N.Y.C.R.R. Part 300);
WHEREAS, the Bank entered into a Written Agreement, dated February
8, 2000 (the "2000 Written Agreement"), with the Federal Reserve Bank of
New York (the "Reserve Bank")
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and the Department (collectively "the Supervisors") that required specific
steps to institute an enhanced due diligence program, and to enhance and
improve the Bank's compliance and risk management functions and audit's role
in the Bank's BSA/AML program; after the Bank made improvements and
enhancements in response to the 2000 Written Agreement, the 2000 Written
Agreement was terminated on June 3, 2002;
WHEREAS, the 2000 Written Agreement addressed, inter alia,
deficiencies in documentation, enhanced due diligence, and risk rating
assessments in the Bank's private banking area, and similar deficiencies
in that area have recently been identified;
WHEREAS, internal and other reviews conducted in 2005 revealed further
deficiencies in the Bank's compliance function and audit's role in the
Bank's BSA/AML program, particularly with regard to internal controls
and procedures for initiating, tracking, documenting, reconciling, and
auditing suspicious activity referrals and ensuring that suspicious
activity reports were timely filed; and with regard to enhanced due
diligence and maintenance of accurate and current customer risk
assessments;
WHEREAS, in recognition of their common goal to ensure the safe
and sound operation of the Bank, and its compliance with all applicable
laws and regulations, the Supervisors and the Bank have mutually agreed
to enter into this Written Agreement (the "Agreement"); and
WHEREAS, on April 11, 2006, the board of directors, at a duly
constituted meeting, adopted a resolution authorizing and directing
Xxxxxx X. Xxxxx to enter into this Agreement on behalf of the Bank and
consented to compliance with each and every provision of this Agreement
by the Bank.
NOW, THEREFORE, the Supervisors and the Bank hereby agree as
follows:
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Management Review
1. Within 60 days of this Agreement, the board of directors
shall direct and oversee a review of the policies, procedures, controls,
and reporting structures for the Bank's compliance function.
(a) The management review shall, at a minimum, address,
consider, and include:
(i) An assessment of the effectiveness of the Bank's
control infrastructure, governance, organizational structure, and
business line accountability, including reporting lines and
responsibilities of each officer;
(ii) management information systems adequate to ensure that
appropriate management personnel and the board of directors
receive timely and accurate reports;
(iii) an assessment of whether the Bank's compliance
function is adequately staffed by qualified and trained personnel,
and as necessary, a plan to recruit, hire, or appoint additional
officers and staff with the requisite ability, experience, and
other qualifications to competently perform their assigned duties;
and
(iv) an assessment of the duties, qualifications, and
training of the Bank's senior management responsible for
implementing and overseeing the Bank's compliance function.
(b) The board of directors shall forward to the Supervisors a
written report that includes findings and conclusions of its management
review, and a description of specific actions that the board of
directors proposes to take to strengthen the management and oversight of
the Bank's compliance function.
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Anti-Money Laundering Compliance Program
2. Internal Controls. Within 60 days of this Agreement, the
Bank shall submit to the Supervisors an acceptable plan describing the
steps that the Bank will continue to take to strengthen its controls for
ensuring ongoing compliance with applicable federal and state AML
statutes and regulations.
3. Independent Testing. Within 60 days of this Agreement, the Bank
shall submit to the Supervisors an acceptable written plan for the
review and, where necessary, the enhancement of audit policies and
procedures to ensure effective, ongoing testing of BSA/AML compliance,
including compliance with suspicious activity reporting requirements.
The plan shall include, at a minimum:
(a) An evaluation of the frequency and scope of audits to
assure the Supervisors that the audit plan reflects the risks
inherent in each business area;
(b) procedures that reasonably outline the audit program
for testing each area's compliance with applicable laws and
regulations; and
(c) procedures to monitor the status and to ensure
effective corrective action to address weaknesses identified by
audit personnel.
4. Training. Within 60 days of this Agreement, the Bank shall
submit to the Supervisors an acceptable written plan to provide
effective training to all appropriate personnel at the Bank in all
aspects of regulatory and internal policies and procedures related to
the BSA and the identification and reporting of suspicious transactions,
and to update the training on a regular basis to reasonably ensure that
all personnel are trained in the most current legal requirements and in
the Bank's compliance risk management processes.
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Suspicious Activity Reporting and Enhanced Due Diligence
5. Within 60 days of this Agreement, the Bank shall submit to
the Supervisors an acceptable, written enhanced due diligence program to
reasonably ensure the identification and timely, accurate and complete
reporting of all known or suspected violations of law against or
involving the Bank and suspicious transactions at the Bank to law
enforcement and supervisory authorities as required by the suspicious
activity reporting provisions of Regulation H of the Board of Governors
(12 C.F.R. 208.62) and 3 N.Y.C.R.R. Part 300.1. The program shall
address, consider, and include:
(a) A risk-focused assessment of the customer base of the Bank
to:
(i) identify the categories of customers whose
transactions and banking activities are routine and usual;
and
(ii) determine the appropriate level of enhanced due
diligence necessary for those categories of customers that
pose a heightened risk of conducting potentially illicit
activities at or through the Bank;
(b) for those customers whose transactions require enhanced due
diligence, procedures to:
(i) determine the appropriate documentation necessary to
verify the identity and business activities of the customer;
and
(ii) understand the normal and expected transactions of the
customer;
(c) enhanced due diligence policies and procedures to further
strengthen the Bank's practices, including enhanced account opening
policies and procedures that require, where necessary, additional
documentation of the identity and business activities of a customer,
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the stated purpose of the account and nature of products and services
to be provided, and source of funds;
(d) comprehensive, updated Bank-wide policies and procedures and
the development of appropriate monitoring tools to ensure that
suspicious activities are detected and reported in compliance with
applicable federal and state reporting requirements, including but not
limited to:
(i) appropriate procedures to reasonably ensure that all
new products involving the receipt or transfer of funds comply
with applicable laws and regulations related to AML compliance and
suspicious activity monitoring and reporting;
(ii) a transaction monitoring system adequate to ensure
effective and thorough risk-based transaction monitoring that
reflects the due diligence performed;
(iii) appropriate participation by senior management in the
process of identifying, reviewing, and reporting potentially
suspicious activity;
(iv) adequate escalation of information about potentially
suspicious activity through appropriate levels of management;
(v) uniform procedures for ensuring that suspicious
transaction referrals are tracked and reconciled to ensure they
result in the filing of a timely Suspicious Activity Report or a
documented decision not to file; and
(vi) maintenance of sufficient documentation by the Bank
with respect to its investigation and analysis of suspicious
activity, including the resolution and escalation of concerns; and
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(e) appropriate escalation procedures to reasonably ensure that
senior management reviews problematic issues and institutes appropriate
actions to resolve reported deficiencies.
Approval and Progress Reports
6. (a) The Bank shall submit written plans and programs that
are acceptable to the Supervisors within the applicable time periods set
forth in paragraphs 2, 3, 4 and 5 of this Agreement.
(b) The Bank shall adopt the approved plans and programs
within 10 days of approval by the Supervisors. The Bank shall thereafter
implement and fully comply with the approved plans and programs. During
the term of this Agreement, the approved plans and programs shall not be
amended or rescinded without the prior written approval of the
Supervisors.
7. Within 20 days after the end of each month following the
date of this Agreement, the Bank shall submit to the Supervisors written
progress reports detailing the form and manner of all actions taken to
secure compliance with the provisions of this Agreement, and the results
thereof.
Notices
8. All communications regarding this Agreement shall be sent
to:
(a) Xx. Xxxxx X. Xxxxxxxx
Senior Vice President
Federal Reserve Bank of New York
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
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(b) Xx. Xxxxxxx X. Xxxxxx
Deputy Superintendent
New York State Banking Department
Xxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
(c) Xx. Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Miscellaneous
9. The provisions of this Agreement shall be binding on the
Bank and each of its institution-affiliated parties in their capacities
as such, and their successors and assigns.
10. Each provision of this Agreement shall remain effective and
enforceable until stayed, modified, terminated or suspended in writing
by the Supervisors.
11. Notwithstanding any provision of this Agreement, the
Supervisors may, in their sole discretion, grant written extensions of
time to the Bank to comply with any provision of this Agreement.
12. The provisions of this Agreement shall not bar, estop, or
otherwise prevent the Board of Governors, the Reserve Bank, the
Department, or any federal or state agency from taking any further or
other action affecting the Bank or any of its current or former
institution-affiliated parties or their successors or assigns.
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13. This Agreement is a "written agreement" for the purposes of,
and is enforceable by the Board of Governors as an order issued under,
Section 8 of the Federal Deposit Insurance Act and by the Department
pursuant to Section 39 of the New York State Banking Law.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed as of this 21st day of April, 2006.
THE BANK OF NEW YORK FEDERAL RESERVE BANK OF
NEW YORK
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxxxxx
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Xx. Xxxxxx X. Xxxxx Xx. Xxxxx X. Xxxxxxxx
Chairman and Chief Executive Officer Senior Vice President
NEW YORK STATE BANKING
DEPARTMENT
By: /s/ Xxxxxxx Xxxxxx
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Xx. Xxxxxxx Xxxxxx
Deputy Superintendent
