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Overcoming ‘Balkanization’ of Business Continuity Planning

Fragmentation

To be sustainable, organizations must prepare for crises that occur or risks that crystalize. General responses to those threats include alternative office sites, IT back-ups and communication protocols. As reality demonstrates over and over, it is critically important to have a strong leader in a crisis situation, be it the captain of a ship in a storm, the commanding officer of a platoon under fire or the CEO of a company in turmoil. A cacophony of contradicting orders or disintegration in the line of command is the surest way to increase a disaster’s impact and the time needed to recover.

Instead of creating a strong BCP landscape with clear lines of command and control, however, we more often see “balkanization,” or fragmentation of responsibilities. Business continuity planning, environmental health and safety, operational risk and IT disaster recovery are different teams with overlapping roles and responsibilities for crisis management.

The newest buzzword is resilience, which is discussed in a growing number of articles and lectures and defined as the “ability to bounce back to a normal operating status after a state of crisis.” There are also a number of overlapping areas with the aforementioned functions—and that is just on an intra-company level. The OECD has issued Guidelines for Resilience System Analysis, urging member states to set up resilience management on a country level basis.

Recent private initiatives like the 100 Resilient Cities (100RC) by the Rockefeller Foundation brings resilience management to an urban level. So if a natural disaster hits a major city, thousands of firms, and the city itself, will invoke a patchwork of crisis plans. For a larger disaster, there might also be a national crisis plan. Are there clear lines of command, however? Is everybody aware of what to do? We doubt it.

Modern BCP management does not need more specialization and buzzwords, but coordination of the different functions and initiatives to provide a clear, consistent and timely response. One of the most pressing tasks is establishing a common risk language to ensure that all stakeholders involved in the process have the same understanding. For example: While the 100RC initiative is coining the term CRO for chief resilience officer, the acronym is also widely used as an abbreviation for chief risk officer. So while talking about roles and responsibilities of a CRO, everyone involved should have a clear understanding about which CRO is meant.

100RC also looks at urban resilience in terms of surviving and thriving, regardless of the challenges—be they acute shocks (such as severe weather or earthquakes) or chronic stress (long term unemployment and violent crime)—and it seeks a much wider remit than the traditional concept of resilience as “the ability to bounce back from an event.”

The response is to call for a more coordinated approach working across multiple stakeholders through the chief resilience officer who, according to Michael Berkowitz (President of 100RC) “needs to build connections across not just various departments of municipal government, but across an entire ecosystem of people and places.” This is welcomed, since it is both forward looking and holistic in its approach to solving some of the world’s major issues in the next 20 years. Given that most entities are no longer stand-alone enterprises, but part of an increasing global network of customers, suppliers, regulators and other stakeholders, disaster recovery cannot be handled effectively by an individual member of that network. Instead, the entire group needs to collaborate to create an effective disaster recovery program. A central CRO who coordinates the needs of the various parts of the network seems to be the best way.

While we see this forward looking risk management approach to resilience as a welcome development, it does further complicate interaction between resilience and BCP by muddying command and control and introducing the potential for more stakeholders into an already complex chain. What is required for this to work is very clear planning and, one could argue, the ability for external (such as municipal) CROs to assume command of enterprises under his or her jurisdiction.

As of now, in most jurisdictions it is the responsibility of the CEO and the board to determine and define risk capacity and risk appetite. This leaves little room for outsourcing BCP or resilience planning. The key question, then, is whether a change in mindset and approach is required to enable the development of network-wide recovery solutions, thus overcoming the balkanization of BCP.

Captive Regulators Disappointed in New FHFA Rule

A final rule released by the Federal Housing Finance Agency (FHFA) amended its regulation on Federal Home Loan Bank (FHLB) membership to specify that captive insurance companies can no longer be used as a conduit to membership of the organization. Membership offers entities access to low-cost FHLB funding and other benefits. Because insurers may become FHLB members, along with credit unions and savings and loans, the Federal Home Loan Bank Act has been revised to specify that the term “insurance company” excludes captives.

Housing regulators have viewed captive insurers as a loophole used to access low-cost, government-backed financing. “Real-estate investment trusts that invest in mortgages are normally ineligible for home-loan-bank membership, but over the past few years have created captive insurers to gain indirect access to cheap federal funding,” The Wall Street Journal wrote.

As a result of captives being admitted as members, “25 are owned by entities that are not themselves eligible for membership.” The FHFA said it is “concerned that this practice will continue to grow and there is no reason to believe it will not grow to include entities other than REITs (Real Estate Investment Trusts), such as hedge funds, investment banks and finance companies, some of which have already inquired about establishing captives to gain access to the FHLB System.”

FHFA Director Melvin L. Watt said in a statement, “FHFA has the authority and the duty to implement the statutory membership provisions of the Federal Home Loan Bank Act and by adopting the proposal to exclude captives from the definition of insurance company we are making sure that institutions can’t frustrate the intent of Congress.” He added, “Congress has amended the Federal Home Loan Bank Act in the past to allow additional entities to become members of a Federal Home Loan Bank and it can certainly do so again if it wants some of these entities to be eligible for membership.”

Captive regulators of Vermont and Delaware expressed disappointment in the decision. David Provost, deputy commissioner of captive insurance of the Vermont Department of photo_provostFinancial Regulation, said, “Vermont’s response to the proposed rule was pretty straightforward: Don’t ban captives from FHLB membership just because they are captives. Captive insurance companies are regulated insurance companies, licensed for a particular purpose, and regulated in a manner commensurate with their risk,” he said.

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Steve Kinion, director of the Bureau of Captive and Financial Insurance Products for the Delaware Insurance Department said, “The Delaware Insurance Department is disappointed that the Federal Housing FinancSteve Kinion (2)e Agency made the decision it made. In at least two comment letters, one in 2012 and the other in 2015, we have made attempts to work with the Federal Housing Finance Agency to help it understand captive insurers.” He added that what has been disappointing is that “our offers were never accepted. Delaware Insurance Commissioner Stewart continues to believe that captive insurers that are members of the FHLB system are well regulated and contribute to the FHLB’s mission of fostering housing in the United States.”

Kinion explained that that REITs have long sought membership in the Federal Home Loan Bank system, which was formed in 1932 to provide liquidity for the housing market. Because current law states that only certain types of institutions may become Home Loan Bank members, “captives have been a portal for membership. It’s unfortunate when well-regulated captive insurers are excluded from membership.

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 I only wish that, before it issued its regulation, the FHFA would have allowed me the opportunity to show what Delaware does at the state level to regulate captive insurers.”

Delaware had been seeing increased interest in REITs. The domicile has one such captive and others were in the pipeline. One reason Delaware likes them is the revenue they bring in. “Our regional Home Loan Bank is in Pittsburgh and 10% of the profits generated have to be designated for affordable housing programs,” Kinion said. “In Delaware, there are a number of organizations that receive grants from the bank to promote affordable housing, and that benefits the state.”

The REITs captive program was fostered by Delaware Insurance Commissioner Karen Weldin Stewart. Her rationale was that, through the program she could “help with affordable housing in Delaware, which she can’t do directly as insurance commissioner,” Kinion said. “This was an indirect means of helping Delaware’s affordable housing programs.

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Provost said that while he supports REITs captives, the new rule will have a negligible impact on Vermont. “We have studiously avoided jumping on bandwagons of forming captives that have no apparent insurance purpose solely for some ancillary advantage,” he said. “We have allowed captives to apply for membership to the FHLB, and so far five have joined. They will have one year or five years to leave the FHLB system, depending on when they joined.”

Kinion noted, “I wish the FHFA would have at least talked to us, so they could have seen how we regulate captive insurance companies. If regulation is a concern, they should have at least taken a step to find out what we do at the state level. But that didn’t happen.”

Rules Needed for Office Lottery Pools

Powerball

With the current Powerball Jackpot estimated at $1.4 billion, the highest amount ever, people everywhere are lined up to buy tickets—and making plans for their winnings. The odds of winning Powerball, however, are one in 292,201,338. Meanwhile the odds of being struck by lightning in any given year are one in 700,000.

To maximize their odds of winning, many form pools to purchase more tickets. Often this takes place at work, but if a company is located in a state where the lottery or gambling is illegal, an office pool may not be a good idea.

Powerball tickets are sold in 44 states, as well as Washington, D.C., the U.S. Virgin Islands and Puerto Rico. They are not allowed to be sold in Alabama, Alaska, Hawaii, Mississippi, Nevada and Utah.

“Even if you pool your money and then buy a ticket from another jurisdiction, the criminal statute may still apply. You were arguably participating in and promoting a lottery within the state,” Stephanie Rabiner wrote.

Employees of the U.S. government should also be aware that they are prohibited from taking part in any gambling activity on government-owned or government-leased property, or when they are on duty for the government.

But with so much money at stake, what could go wrong? Plenty, and with the jackpot so high, the likelihood for complications is also increased.

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Midge Seltzer, president of Engage PEO, lists a few of the potential problems and steps that can be taken to circumvent them.

Potential issues:

  • Employee claims he or she bought the winning ticket and was not part of the pool.
  • Employee only verbally said, “I’m in,” or “Yes, and I’ll give you the money tomorrow.

  • Participants aren’t actually known, because the pool is so loosely handled.
  • An employee had participated previously, but was absent to contribute to this pool.

Guidance:

  • Ensure that all participants pay prior to purchase of lottery tickets.
  • Choose a leader—the employee who will be responsible to purchase the tickets and put them in a safe place.
  • Make copies of the tickets.
  • Have all participants write and sign their names and have the lead confirm that he/she paid for the tickets.
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  • Agree beforehand how employees will choose the numbers (at random or set numbers).
  • Agree beforehand whether employees will take a lump sum or payout.

What are the most popular states for Powerball?

Residents of Rhode Island have bought the most Powerball tickets, with an average of 3.44 tickets per person since the last jackpot was won on Nov. 4, according to consumer finance website ValuePenguin.

The top 20 states for per-capita participation in Powerball:

Top-20 States for ticket sales

U.S. Sues VW

VW logo

The U.S. Justice Department on Monday sued Volkswagen in federal court in Michigan for illegally installing faulty emission control devices in about 600,000 vehicles. The lawsuit, filed on behalf of the U.S. Environmental Protection Agency (EPA), accuses VW of four counts of violating the U.S. Clean Air Act, including tampering with the emissions control system and failing to report violations.

According to a Reuters review of the U.S. complaint, VW could face fines of up to $37,500 per vehicle for each of two violations of the law, up to $3,750 per “defeat device,” and another $37,500 for each day of violation.

Risk Management magazine reported in December 2015 that the affected EA 189 diesel engines were installed in more than 11 million Volkswagen and Audi vehicles manufactured between 2009 and 2014. The company announced on Oct. 22 that it was also looking into whether the software might be in earlier versions of its latest EA 288 diesel engine, potentially adding millions more to the total.

Regulators across the globe, including in India, South Korea and Germany, are conducting their own investigations, as are attorneys general in all 50 U.S. states. The Justice Department has been seen as the only agency that might hold executives personally accountable, according to The New York Times.

The government is seeking a number of penalties against the company, including fines and further actions to mitigate the emission of harmful pollutants. A federal court will determine what actions the company must take to reduce emissions and a dollar figure for the penalty.

VW (VOWG_p.DE) shares fell as much as 6% to a six-week low on Jan. 5, the biggest drop yet on Germany’s blue-chip DAX index, Reuters said.