Financial Services and Agriculture Committee Chairs Reach Agreement in
Principle on Derivatives Legislation
The derivatives piece of the Obama Administration's
proposed legislation to overhaul regulation of the financial markets came closer
to fruition as the chairs of the House Financial Services and the Agriculture
Committees agreed on the basic principles of derivatives legislation. A joint
concept paper released by the chairs helps defuse fears of jurisdictional
conflicts as the legislation moves forward. The legislative approach agreed to
by Chairs Barney Frank (D-MA) and Collin Peterson (D-MN) bridges the differences
between those members who want to completely eliminate the OTC derivatives
market and those who think that greater transparency is all that is needed. The
principles agreed to by the chairs include harmonized SEC-CFTC regulation, the
mandatory clearing of OTC derivatives, limitations on speculation, coordination
with foreign regulators and a dispute resolution role for a new Financial
Services Oversight Council.
Depending on the underlying asset on which a
derivative is based, either the SEC or the CFTC, or potentially both, will
oversee the regulation of OTC derivative dealers, exchanges and clearinghouses.
The statutory and regulatory powers of the SEC and the CFTC will be harmonized
with respect to the OTC derivative market, including registration requirements
for dealers. The agencies will have enforcement authority over products under
their jurisdiction and joint enforcement authority for any products subject to
joint jurisdiction.
The chairs also agreed that the new Financial Services
Oversight Council will resolve disputes between the SEC and CFTC over authority
over new derivatives products within 180 days. Similarly, the Council will
resolve disputes between the SEC and CFTC over joint regulation of derivative
products within 180 days. It is envisioned that the Council will include the
Fed, the SEC, and the CFTC.
The House leaders also agreed that the legislation
will direct U.S. regulators to coordinate with foreign regulators on harmonizing
OTC derivative market regulations, including recognized international standards
with respect to clearinghouses. In addition, to prevent regulatory arbitrage,
the Treasury Department would be authorized to restrict access to the U.S.
banking system for institutions of any jurisdiction that Treasury finds permits
capital-related standards that are lower than U.S. standards or that promote
reckless market activity.
The chairs agreed that derivatives must be cleared by
an approved clearinghouse. Exchange trading and trading on electronic trading
platforms will be strongly incentivized and encouraged. An exception would be
when a regulator determines that the derivatives product is not sufficiently
standardized to be cleared, no qualified clearing mechanism exists or when one
party in the transaction does not qualify as a major market participant as
determined by the appropriate regulator in consultation with the Financial
Services Oversight Council. Regulators would be authorized to prohibit or
regulate transactions that are not traded on an exchange or cleared.
Primary oversight authority of the credit default swap
clearinghouse, ICE Trust, would be shifted from the Federal Reserve Board to a
market regulator within six months of the legislation's enactment.
The legislation would require all OTC derivative
trades to be reported to a qualified trade repository. The draft legislation
would also require that regulators act within 180 days on requests for approval
as a clearinghouse, exchange or electronic trading platform.
Under the legislation, appropriate regulators will
develop margin and capital requirements to create a strong incentive for dealers
and users of derivatives to trade them on an exchange or an electronic trading
platform or to have them cleared whenever possible. Higher capital and margin
charges will apply to non-standardized transactions that are not exchange-traded
or centrally cleared. Regulators would be permitted to authorize the use of
non-cash collateral to satisfy margin requirements.
The concept paper sets out two options on speculation.
The first is a limitation on speculation prohibiting any purchase of credit
protection using a credit default swap unless the party owns the referenced
security, the party has a bona fide economic interest that will be protected by
the contract or the party is a bona fide market maker. Regulators would be
authorized to monitor market activity and impose position limits where
necessary.
The second option would be to require confidential
reporting to the appropriate regulator of all short interest in credit default
swaps by OTC derivatives dealers, investment advisers managing over $100
million, and other entities that are deemed major market participants. In order
to prevent abuse, the appropriate regulator would be authorized to impose
position limits on market participants and ban the purchase of credit protection
using credit default swaps by any non-dealer that is not hedging a risk.