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Frequently Asked Questions Received On Financial Institution Letter 121-2004: Guidance on Developing an Effective Computer Software Evaluation Program to Assure Quality and Regulatory Compliance
1. What software products used by financial institutions do not comply with applicable laws and regulations?
The source of this information is confidential supervisory information, which we are not permitted to disclose. The primary intent of this Financial Institution Letter ("FIL") is to remind management of their due diligence requirement when selecting a vendor or computer software solutions to business problems. Because of new and changing banking laws and implementing regulations, some software vendors, providers of commercial off-the-shelf ("COTS") products and in-house legacy systems may not be fully updated in applying all necessary changes required for compliance. Of particular note are the in-house legacy systems and COTS products, where needs were identified and a product was developed to meet those needs, but the required enhancements to keep the product updated and in compliance were not made.
FIL #121-2004 states, "Financial institution management should perform adequate due diligence to ensure that software solutions meet the needs of the institution and function as required by current applicable laws and regulations." The FIL further states, "The due diligence process must be performed on an on-going basis to ensure that technical software solutions remain compliant...."
2. Could you clarify what kinds of applications qualify as core-processing or mission-critical applications? For example, would the following software functions be considered mission critical: software used in network routers to control Virtual Private Networks (VPN), software in an anti-spam appliance, or anti-virus software?
Essentially, core-processing or mission-critical applications are those that provide the foundation for the financial institution to conduct daily business operations. These core-processing or mission-critical applications differ from one financial institution to another. In the case of a retail financial institution, the deposit and loan applications would be considered core-processing and mission-critical applications. For a wholesale bank, loan-generation and secondary-market applications would be considered core-processing or mission-critical applications. An Internet-bank would identify access to the Internet as a mission-critical application, while the core applications would include deposits, checking, and bill payment. An international bank with trust activities would include SWIFT and funds transfer applications as mission critical, while the deposit, loan, secondary market, trust, and security applications (among others) would be core applications.
Typically, software used in network routers would not be considered as a core-processing or mission-critical application as the software is being used to provide a pathway to an application or data. On the other hand, it could be considered mission critical if it were the only router on the system, all access requests were sent through that router, and failure of the router would halt business.
3. Should a bank be able to search its database (electronic records) for multiple criteria such as, a person, business, social security number ("SSN"), address, driver's license number, tax identification number, or any other identifying information?
Yes, it is necessary to maintain the ability to search databases beyond just name and SSN to ensure compliance under the Bank Secrecy Act ("BSA") and the bank's in-house customer identification program ("CIP") as required by Section 326 of the USA PATRIOT Act. Additional information about CIP programs can be found in FIL-90-2004, published July 28, 2004.
4. If a compliance question arises after an application is installed, who is the final arbiter for disputed interpretations of a regulation between a bank and a technology service provider?
These issues are generally addressed in the contract, and typically involve an arbitration process. If they cannot be resolved through this process, the final solution may require a legal interpretation.
5. Why were these guidelines developed? Is the type of software in question used specifically to prevent money laundering or are there broader applications?
The FDIC discovered, through the examination process, that certain software products used by financial institutions do not comply with applicable laws and implementing regulations of the BSA. The products identified by the FDIC that resulted in this guidance were being used to meet BSA compliance; however, management's due diligence requirement extends to all products.
The guidelines were issued to remind bank management of their due diligence responsibilities when selecting vendors and products. Bank management should be aware of their due diligence requirement any time a vendor or product is selected to perform a bank function.
6. When are the guidelines effective? Do they have the force of a legal and/or regulatory mandate?
In general, FILs are used to communicate guidance and are effective when issued. While this guidance provided specific reminders relating to the use of vendor products and software to comply with the BSA regulations, bank management's responsibility has always been to ensure that the bank complies with applicable laws. While the guidance is not a regulatory mandate, following it may improve the institution's compliance with applicable laws and regulations.
7. Has the FDIC identified vendors that produced non-compliant COTS software for the purpose of Bank Secrecy Act compliance?
The FDIC has identified some vendor and software products that are not configured correctly or lack the functionality to retrieve and retain documentation for required regulatory time frames. When products were identified that did not fully comply with the BSA, the bank or vendor initiated corrections immediately.
8. Does the FDIC have similar guidelines for firms that develop their own in-house BSA software rather than purchase a vendor product?
Bank management is responsible to ensure that the bank complies with applicable laws and regulations regardless of whether products are purchased or internally developed.
9. Are these guidelines similar to those that exist for the purchase of software used to monitor the Office of Foreign Assets Control ("OFAC") list?
10. Since decisions of this type are normally made by the Department of the Treasury or Federal Financial Institutions Examination Council ("FFIEC"), why did the FDIC issue these guidelines?
The FDIC examination process identified certain BSA and Anti-Money Laundering ("AML") software products used by financial institutions that did not comply with applicable laws and regulations. FIL #121-2004 was a reminder to bank management of its pre-existing due diligence responsibility. The FFIEC and Federal Banking Agencies have jointly and individually released guidance to their institutions and/or the industry about risk from third-party products. This issuance is consistent with that practice. The FDIC, as part of its supervisory program of state-nonmember banks, issues guidance to inform institutions of risks and best practices.
11. The FFIEC published guidance on the acquisition of free and open software ("FOSS") on October 21, 2004. Does the FDIC's guidance amend the FFIEC's FOSS guidance?
This guidance does not amend the FFIEC FOSS guidance; it simply offers financial institutions guidance on additional areas of risk identified by the FDIC.
12. Would workstation applications such as Windows XP and Microsoft Office be affected?
These applications would be included if they are core-processing or mission-critical applications that provide the foundation for your financial institution to conduct daily business (refer to response to question #2). Alone, Windows XP and Microsoft Office would themselves not be affected; however, core-processing or mission-critical programs that utilize Windows XP (or a variant thereof) could be affected. These applications vary from one financial institution to another.
13. Would network applications such as virus scan software be affected?
Virus scan software is considered a COTS product. Similar to Windows XP and Microsoft Office, virus scan software may or may not be considered a core-processing or mission-critical application (refer to response to question #2).
14. BSA/AML applications are specifically referenced. Are these the only applications in question?
The due diligence requirement exists for all purchased or internally developed products. Please refer to the response for question #2. Also, as stated in the Conclusion section of FIL-121-2004:
"Financial institution management should perform adequate due diligence to ensure that software solutions meet the needs of the institution and function as required by current applicable laws and regulations." The FIL further states, "the due diligence process must be performed on an on-going basis to ensure that technical software solutions remain compliant...."
15. The guidance refers to a regulatory requirement clause that requires vendors to maintain application software in compliance with all applicable federal and state regulations. Does this mean a software vendor cannot use separate add-on products?
The FDIC recognizes that software packages generally do not meet every regulatory requirement. FIL-121-2004 is intended to provide guidance to financial institutions performing proper due diligence when selecting computer software and/or a service provider. To meet certain reporting and/or processing requirements, compliance can be obtained through other core or add-on products.
Management should confirm and document compliance as part of their due diligence. Due diligence should ensure that each product performs the tasks for which it was purchased, and that the program is in compliance with the laws and regulations associated with those tasks.
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