Florida Senate - 2016                        COMMITTEE AMENDMENT
       Bill No. SB 1106
       
       
       
       
       
       
                                Ì451028ÂÎ451028                         
       
                              LEGISLATIVE ACTION                        
                    Senate             .             House              
                  Comm: RCS            .                                
                  02/24/2016           .                                
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       Appropriations Subcommittee on General Government (Hays)
       recommended the following:
       
    1         Senate Amendment (with title amendment)
    2  
    3         Delete everything after the enacting clause
    4  and insert:
    5         Section 1. Present subsections (10) and (11) of section
    6  663.01, Florida Statutes, are renumbered as subsections (11) and
    7  (12), respectively, and a new subsection (10) is added to that
    8  section, to read:
    9         663.01 Definitions.—As used in this part, the term:
   10         (10) “International trust entity” means an international
   11  trust company, an international business, an international
   12  business organization, or an affiliated or subsidiary entity
   13  that is licensed, chartered, or similarly permitted to conduct
   14  trust business in a foreign country or countries under the laws
   15  of which it is organized and supervised.
   16         Section 2. Section 663.041, Florida Statutes, is created to
   17  read:
   18         663.041 Moratorium on the office’s enforcement of licensing
   19  requirements for an international trust entity or related
   20  entities.—
   21         (1)The office shall delay the enforcement of the
   22  requirement under s. 663.04(4) relating to licensure of an
   23  organization or entity in this state providing services to an
   24  international trust entity that engages in the activities
   25  described in s. 663.0625. This delay extends to any person who
   26  manages or controls or is employed by such organization or
   27  entity that:
   28         (a) Has been organized to conduct business in this state
   29  before October 1, 2013;
   30         (b) Has not been fined or sanctioned as a result of any
   31  complaint to the office or to any other state or federal
   32  regulatory agency;
   33         (c) Has not been convicted of a felony or ordered to pay a
   34  fine or penalty in any proceeding initiated by any federal,
   35  state, foreign, or local law enforcement agency or international
   36  agency within the 10 years before the effective date of this
   37  section;
   38         (d) Has not had any of its directors, executive officers,
   39  principal shareholders, managers, or employees arrested for,
   40  charged with, convicted of, or pled guilty or nolo contendere
   41  to, regardless of adjudication, any offense that is punishable
   42  by imprisonment for 1 year or more, or to any offense that
   43  involves money laundering, currency transaction reporting, tax
   44  evasion, facilitating or furthering terrorism, fraud, or that is
   45  otherwise related to the operation of a financial institution,
   46  within the 10 years before the effective date of this section;
   47         (e) Does not provide services for any international trust
   48  entity that is in bankruptcy, conservatorship, receivership,
   49  liquidation, or a similar status under the laws of any country;
   50         (f) Does not provide banking services or promote or sell
   51  investments or accept custody of assets;
   52         (g) Does not act as a fiduciary, which includes, but is not
   53  limited to, accepting the fiduciary appointment, executing the
   54  fiduciary documents that create the fiduciary relationship, or
   55  making discretionary decisions regarding the investment or
   56  distribution of fiduciary accounts; and
   57         (h) Conducts those activities permissible for an
   58  international trust company representative office as described
   59  in s. 663.0625.
   60         (2) This moratorium does not prevent the office from
   61  otherwise enforcing the financial institutions codes.
   62         (3) An organization or entity that seeks consideration for
   63  this moratorium shall notify the office in writing by letter on
   64  official letterhead via United States Postal Service or
   65  commercial mail delivery service by July 1, 2016, and shall
   66  provide the following:
   67         (a) Written proof that it has been organized to do business
   68  in this state before October 1, 2013;
   69         (b) The name or names under which it conducts business in
   70  this state;
   71         (c) The addresses of its locations from which it conducts
   72  business;
   73         (d) A detailed list and description of the activities being
   74  conducted at the locations from which it conducts business. The
   75  detailed description must include the types of consumers that
   76  utilize those activities and an explanation of how those
   77  activities serve the business purpose of an international trust
   78  entity.
   79         (e) As to each international trust entity the organization
   80  or entity provides services for in this state, the following:
   81         1. The name of the international trust entity;
   82         2. A list of the current officers and directors of the
   83  international trust entity;
   84         3. The country or countries where the international trust
   85  entity is organized;
   86         4. The supervisory or regulatory authority, or equivalent
   87  or other similarly sanctioned body, organization, governmental
   88  entity, or recognized authority that has licensing, chartering,
   89  oversight, or similar responsibilities over the international
   90  trust entity;
   91         5. Proof that the international trust entity has been
   92  authorized by a charter, license, or similar authorization by
   93  operation of law in its home country jurisdiction to engage in
   94  trust business;
   95         6. Proof that the international trust entity lawfully
   96  exists and is in good standing under the laws of the
   97  jurisdiction where it is chartered, licensed, organized, or
   98  lawfully existing. The organization or entity shall submit a
   99  certificate of good standing or equivalent document issued by
  100  the supervisory or regulatory authority, or equivalent or other
  101  similarly sanctioned body, organization, governmental entity, or
  102  recognized authority that has similar responsibilities, of the
  103  country where the international trust entity is licensed,
  104  chartered, or has similar authorization by operation of law and
  105  is duly organized and lawfully exists;
  106         7. A statement that the international trust entity is not
  107  in bankruptcy, conservatorship, receivership, liquidation, or in
  108  a similar status under the laws of any country; and
  109         8. Proof that the international trust entity is not
  110  operating under the direct control of the government,
  111  regulatory, or supervisory authority of the jurisdiction of its
  112  incorporation, through government intervention or any other
  113  extraordinary actions, and confirmation that it has not been in
  114  such a status or under such control at any time within the 7
  115  years before the date of notification to the office.
  116         (f) A declaration under penalty of perjury signed by an
  117  executive officer or managing member of the organization or
  118  entity, declaring that the information provided to the office is
  119  true and correct to the best of his or her knowledge.
  120         (4) In processing the notification and request to qualify
  121  for moratorium, the office shall confirm the following:
  122         (a) That the international trust entity is adequately
  123  supervised by the appropriate regulatory authority, or
  124  equivalent or other similarly sanctioned body, organization,
  125  governmental entity, or recognized authority that has similar
  126  responsibilities in the foreign country where it is organized,
  127  chartered, or licensed, or has similar authorization by
  128  operation of law; and
  129         (b) That the jurisdiction of the international trust entity
  130  or its offices, subsidiaries, or any affiliates that are
  131  directly involved in or facilitate the financial services
  132  functions, banking, or fiduciary activities of the international
  133  trust entity, is not listed on the Financial Action Task Force
  134  Public Statement or on its list of jurisdictions with
  135  deficiencies in anti-money laundering or counterterrorism.
  136         (5)For purposes of establishing adequate supervision under
  137  paragraph (4)(a):
  138         (a) An international trust entity with foreign
  139  establishments is considered adequately supervised if it is
  140  subject to consolidated supervision. As used in this paragraph,
  141  “consolidated supervision” means supervision that enables the
  142  appropriate regulatory authority, or equivalent or other
  143  similarly sanctioned body, organization, governmental entity, or
  144  recognized authority that has similar responsibilities of the
  145  home country (home country supervisor) to evaluate:
  146         1. The safety and soundness of the international trust
  147  entity’s operations located within the home country supervisor’s
  148  primary jurisdiction; and
  149         2. The safety and soundness of the operations performed by
  150  the international trust entity’s offices, subsidiaries, or any
  151  affiliates that are directly involved in or facilitate the
  152  financial services functions, banking, or fiduciary activities
  153  of the international trust entity, wherever located.
  154         (b) An international trust entity with no foreign
  155  establishments is considered adequately supervised if the home
  156  country supervisor can evaluate the safety and soundness of the
  157  international trust entity’s operations through its offices or
  158  subsidiaries located in the home country. For purposes of this
  159  paragraph, the home country supervisor is deemed to be able to
  160  evaluate the safety and soundness of the international trust
  161  entity if the home country supervisor has the authority to
  162  collect and maintain information on the following regulatory
  163  components:
  164         1. The technical competence and administrative ability of
  165  the management of the international trust entity;
  166         2.The adequacy of the operational, accounting, and
  167  internal control systems of the international trust entity,
  168  particularly the international trust entity’s ability to monitor
  169  and supervise the activities of its offices or subsidiaries
  170  wherever located;
  171         3. The adequacy of asset management and asset
  172  administration policies and procedures;
  173         4. The capital adequacy of the international trust entity,
  174  its offices or subsidiaries as specified by any capital adequacy
  175  guidelines in the home country;
  176         5.The earnings of the international trust entity; and
  177         6. The external and internal auditors’ reports as well as
  178  any management comment letters or any documented corrective
  179  action by management.
  180         (c) As used in paragraphs (4)(a), (5)(a), and (5)(b),
  181  adequate supervision does not necessarily require supervision of
  182  companies that control the international trust entity or
  183  supervision of companies under common control with the
  184  international trust entity but that are not in the international
  185  trust entity’s chain of control. However, in cases where a
  186  holding company is the only controlling element in a trust
  187  business group, holding company supervision by a home country
  188  supervisor shall be required when it is needed to ensure
  189  consolidated supervision of all trust business entities in the
  190  group.
  191         (d) If a holding company is not supervised, adequate
  192  supervision is deemed to exist if the home country supervisor
  193  regulates transactions between the international trust entity
  194  and controlling persons or entities under common control.
  195         (e) An international trust entity and its offices or
  196  subsidiaries is deemed to be adequately supervised if it is
  197  subject to comprehensive supervision. For purposes of this
  198  paragraph, comprehensive supervision:
  199         1. Means supervision that ensures that the supervisory
  200  processes and procedures are designed to inform the home country
  201  supervisor about the international trust entity’s financial
  202  condition, including capital position; asset management and
  203  asset administration; internal controls and audit; compliance
  204  with existing laws and regulations; and capability of
  205  management.
  206         2. Does not require the home country supervisor to conduct
  207  onsite examinations of the international trust entity or its
  208  offices or subsidiaries. However, at a minimum, it requires that
  209  the home country supervisor:
  210         a. Is able to determine that the international trust entity
  211  and its offices and subsidiaries have adequate procedures for
  212  monitoring and controlling its domestic and foreign operations;
  213         b. Is authorized to obtain information, by examination,
  214  audits or by other means, on the domestic and foreign operations
  215  of the international trust entity, including its offices and
  216  subsidiaries, and the authority to demand financial reports
  217  which permit analysis of the consolidated condition of the
  218  international trust entity;
  219         c. Is able to obtain information on the dealings and
  220  relationships between the international trust entity and its
  221  offices and subsidiaries, wherever located; and
  222         d. Is authorized by the home country’s laws to ensure the
  223  safety and soundness of the international trust entity and its
  224  offices and subsidiaries.
  225         3. Includes the ability and willingness of the home country
  226  supervisor to provide the office early notice of any weaknesses
  227  being experienced by the international trust entities, including
  228  its offices or subsidiaries wherever located.
  229         4. Includes the ability of the home country supervisor to
  230  provide the office assurance of cooperation by both the
  231  international trust entity and the home country supervisor.
  232         (6) The office shall process requests made by notification
  233  for inclusion under the moratorium as follows:
  234         (a) Upon receipt of any request, the office shall review
  235  the information contained therein, and request any additional
  236  information to complete the notification within 30 days after
  237  receipt. The organization or entity shall provide the requested
  238  additional information within 45 days after the receipt of the
  239  notice from the office. If the office does not make such request
  240  within 30 days after receipt, the notification is deemed
  241  complete as of the date it was received.
  242         (b) Within 20 days after receipt of any additional
  243  information requested, the office shall deem the notification
  244  complete or provide notification to the organization or entity
  245  that the information provided does not satisfy the office’s
  246  request or requests.
  247         (c) Within 90 days after receipt of a completed
  248  notification, the office shall confirm with the organization or
  249  entity that they are or are not a party to the moratorium. If
  250  the office fails to notify the organization or entity within
  251  such time whether or not the organization or entity is a party
  252  to the moratorium, then the organization or entity is considered
  253  a party to the moratorium by operation of law.
  254         (g) During the period of the moratorium, the office may
  255  conduct an onsite visitation of an organization or entity to
  256  confirm information provided to the office in deeming the
  257  organization or entity qualified for the moratorium.
  258         Section 3. Section 663.041, Florida Statutes, and the
  259  amendments to section 663.01, Florida Statutes, made by this
  260  act, are repealed on July 1, 2017.
  261         Section 4. This act shall take effect upon becoming a law.
  262  
  263  ================= T I T L E  A M E N D M E N T ================
  264  And the title is amended as follows:
  265         Delete everything before the enacting clause
  266  and insert:
  267                        A bill to be entitled                      
  268         An act relating to international trust entities;
  269         amending s. 663.01, F.S.; defining the term
  270         “international trust entity”; creating s. 663.041,
  271         F.S.; providing for a moratorium for a specified
  272         timeframe on enforcement by the Office of Financial
  273         Regulation of certain licensure requirements for
  274         certain organizations and entities providing services
  275         to international trust companies; providing conditions
  276         to extend the moratorium to specified persons of the
  277         organization or entity; providing for construction;
  278         specifying requirements for a letter to the office to
  279         qualify as a party to the moratorium; requiring the
  280         office to confirm specified findings when processing a
  281         request; specifying circumstances for establishing
  282         adequate supervision; providing procedures and
  283         timeframes for the office’s processing of requests and
  284         the office’s requests for additional information;
  285         providing timeframes for the office to confirm with
  286         the organization or entity whether it has been
  287         confirmed as a party to the moratorium; providing for
  288         construction if certain timeframes are not met;
  289         authorizing the office to conduct an onsite visitation
  290         of an organization or entity for a specified purpose
  291         until a specified time; providing for future repeal;
  292         providing an effective date.