Republican Staff Rips into “SIFI” Designation Process

Republican staff members of the House of Representatives Financial Services Committee issued a Report titled: The Arbitrary and Inconsistent FSOC Nonbank Designation Process. The Report sharply criticized the designation process by the Financial Stability Oversight Council (“FSOC”) for Systemically Important Financial Institutions (“SIFIs”), which are subject to enhanced regulatory standards.

Republican staff members analyzed nonpublic internal FSOC documents and concluded that FSOC does not adhere to its own rules and guidance in the following ways:

  • FSOC considers “non-systemic risks” when determining whether to make a “systemically important” designation.
  • FSOC “simply assumes” that financial distress at a company will cause the impairment of financial market functioning, and damage to the broader economy, without actually making such a determination, as required by FSOC’s own rules.
  • FSOC fails to follow its own requirement that the evaluation of the systemic risk posed by individual firms must be done “in the context of a period of overall stress in the financial services industry and in a weak macroeconomic environment.”
  • FSOC shows a particular lack of consistency when considering whether to factor the use of collateral in certain financial transactions into designation decisions.

Republican staff concluded that FSOC’s analysis of companies has been “inconsistent and arbitrary.”

Lofchie Comment: The legislation granting FSOC the authority to designate firms as SIFIs is open-ended and ambiguous. The legislation effectively allows the government to decide arbitrarily which companies it elects to designate as SIFIs. (Seee.g.ACLI Files Amicus Brief in MetLife v. FSOC.) The House Report found that the FSOC decision-making process was more open-ended than the provisions governing it. Patrick Pinschmidt, who was the Deputy Assistant Secretary for FSOC, makes the point more sharply in his testimony in the Appendix attached to the Report. According to Mr. Pinschmidt, “there are no bright-line thresholds in terms of what’s bad or what’s good. . . . [I]t’s a qualitative assessment based on significant qualitative analysis. . . . And it’s up to each voting member of the Council to decide . . . what constitutes a significant threshold. . . .”

There is no reason to believe that those who are in or out of government are especially good at making company-specific decisions based on qualitative factors. Picking winners and losers in the market is nearly impossible to do consistently. That is just one reason why the government should not make “qualitative” choices about which companies should be regulated.

Inevitably, the House Republicans’ report on FSOC will be criticized by Democrats as partisan. That said, Democrats should be pleased if the outcome is that the FSOC is stripped of its designation authority, since they should not want Republicans to hold this arbitrary authority and possibly use it against those who may support the Democrats. None of us should want the government to hold this arbitrary authority. Instead, let’s have clear and objective rules.

GAO Issues Report on Agency Coordination and Financial Market Impact of Latest Dodd-Frank Rules

The Government Accountability Office (“GAO”) issued a report on efforts by regulatory agencies to analyze and coordinate Dodd-Frank Act rules that became effective between July 2015 and July 2016. The GAO also examined the impact of select Dodd-Frank Act rules on financial market stability.

The GAO concluded that the CFTC and prudential regulators “coordinated domestically and internationally” and “largely harmonized their respective rules” to develop regulations on margin requirements for over-the-counter swaps. The GAO found that the CFPB “followed its internal guidance for coordinating with relevant agencies throughout the rulemaking process” in adopting the integrated mortgage disclosure rule.

The GAO determined that regulators issued final rules for approximately 75% of the 236 provisions of the Dodd-Frank Act that the GAO is monitoring. GAO noted that delayed implementation of Dodd-Frank Act requirements by the financial services industry, as well as factors outside of its provisions like monetary policy, can make it difficult to isolate the effect of the Dodd-Frank Act on the financial marketplace. That said, the GAO found that, among other actions, Dodd-Frank Act implementation has had the following effects on the financial services industry:

  • large bank systemically important financial institutions have increased in size but have become less vulnerable to financial distress;
  • designated nonbanks are more resilient and less interconnected than in prior years; and
  • increased percentages of collateral for swaps by banks may help protect against credit loss.

However, the GAO stated that:

“The full impact of the Dodd-Frank Act remains uncertain because some of its rules have not been finalized and insufficient time has passed to evaluate others.”

The GAO will continue to monitor the implementation of “prior recommendations intended to improve, among other things, financial regulators’ cost-benefit analysis, interagency coordination, and impact analysis associated with Dodd-Frank regulations.”

Lofchie Comment:  There is not much in this report to get excited about. That the regulators are cooperating with respect to rulemaking is generally a good thing, but it does not necessarily say anything about the quality of the rules being adopted. The numbers demonstrating that banks have become more “resilient” are so high-level that they are of no particular value.

Office of Financial Research Reports on Potential Threats to Financial Stability

The U.S. Office of Financial Research (“OFR”) reported that the U.S. financial system showed improved resilience over the past year but that it faces several threats stemming from global disruptions and “financial system evolution.” The findings were published in the 2016 Annual Report to Congress and in the 2016 Financial Stability Report.

OFR Director Richard Berner highlighted the key vulnerabilities uncovered by the reports:

“. . . Those created by global economic and financial disruptions, by continued risk-taking amid still-low long-term interest rates, by risks facing U.S. financial institutions, and by challenges in improving financial data.”

Both reports cited the following factors and developments as specific threats:

  • potential spillovers from Europe stemming from the long-term uncertainty posed by the Brexit vote;
  • credit risks in U.S. nonfinancial corporations posed by the rapid growth of high debt levels;
  • cybersecurity incidents stemming from electronic transactions;
  • the concentration of risk in central counterparties (“CCPs”) caused by clearing from CCPs;
  • pressure on U.S. life insurance companies;
  • systemic footprints of the largest U.S. banks and the substantial risks inherent in large bank failures; and
  • deficiencies in data and data management.

In the reports, the OFR also discussed the role of shadow banking in the financial system.

Lofchie Comment: A number of the systemic threats in the reports are due in large part to government intervention in the markets; e.g., the high debt levels that result from extremely low interest rates, and the increase in size of very large banks, which arguably is exacerbated by the costs of regulation that weigh most heavily on smaller firms.

The most notable threat acknowledged by the OFR is that which is created by central counterparties: “We are concerned that, although clearing swaps transactions through central counterparties reduces the risk from the other party defaulting in two-way swap transactions, it also concentrates risk in the CCP itself.”

“No kidding,” one is tempted to say. The government’s acknowledgment of this risk, which resulted from Dodd-Frank’s supposed magic bullet, is beneficial if remarkably belated. (Kudos to University of Houston Finance Professor Craig Pirrong, who predicted the threat many years earlier in posts on the Streetwise Professor blog.)

CFTC Commissioner Giancarlo Calls for “Clear-Eyed Attention” to Market Challenges

CFTC Commissioner Christopher Giancarlo addressed three “mega-trends” that are transforming global financial markets: technological disruptions, changing market liquidity and global fragmentation. In a speech before the ISDA Trade Execution Legal Forum, Commissioner Giancarlo called on the CFTC to “revisit its flawed swaps trading rules to better align them to market dynamics.”

In focusing on these mega-trends, Commissioner Giancarlo made clear that regulators must: (i) foster best practices for and harness the power of new trading technologies for the benefit of market participants and regulators; (ii) address the diminishing liquidity in trading markets; and (iii) review and reduce poorly designed rules and regulations that are causing “service-provider concentration and market fragmentation.”

Commissioner Giancarlo argued that “market regulators cannot continue to ignore the growing systemic risk caused by [global] market fragmentation,” and noted the importance of allowing U.S. swap intermediaries to “fairly compete” in world markets to reverse this fragmentation. Commissioner Giancarlo stated:

“Only with clear-eyed attention to the true challenges facing contemporary markets can we ever restore the market vitality that will be necessary for broad-based economic prosperity. Flourishing capital markets are the answer to U.S. and global economic woes, not diminished trading and risk transfer.”

In his criticism of post-crisis regulation, Commissioner Giancarlo observed that overseas market participants continue to avoid firms “bearing the scarlet letters of ‘U.S. person'” in certain swap markets to “steer clear” of the CFTC’s “problematic” regulatory regime.

On market liquidity, Mr. Giancarlo blamed prudential restrictions on bank capital along with the CFTC’s “flawed and restrictive swaps trading rules,” the evolution of some trading markets from dealer to agency models, and the impact of U.S. and European monetary policy for sudden volatility shocks that occur in today’s markets. He decried the practice by U.S. and foreign regulators to plow ahead with “capital constraining regulations” rather than to acknowledge and study the causes of changing market liquidity.

On disruptive technology, Mr. Giancarlo reiterated his opposition to proposed a Reg. AT provision allowing the CFTC to obtain trading system source code without a subpoena. He urged financial regulators to foster a regulatory environment “that spurs innovation” and allows market participants to develop and test innovation solutions “without fear of enforcement action and regulatory fines.”

He noted that the upcoming March 1, 2017 deadline for uncleared swap variation margin requirements “will pose a massive challenge for market participants.” Mr. Giancarlo concluded that “safe, sound and vibrant” global markets are needed for investment and risk management to escape the “new mediocre” of prolonged stagnation.

Lofchie Comment: During his term as Commissioner, Mr. Giancarlo pulled off a trifecta. He: (i) prevented the CFTC’s rules from getting any worse (i.e., neither the position limits rule nor Regulation AT was adopted in part because of Mr. Giancarlo’s work in calling attention to their deficiencies); (ii) kept the focus on issues affecting the market currently and likely to affect the market in the future; and (iii) remained civil yet steadfast with those with whom he had deep policy disagreements. In the new administration, his presence at the CFTC will be integral to the reexamination of the agency’s rules in order to determine what has been working and what has not.

Minneapolis Fed Requests Comments on Plan to End “Too Big to Fail”

The Federal Reserve Bank of Minneapolis (“Minneapolis Fed”) requested comments on its proposed “Minneapolis Plan to End Too Big to Fail” (the “Plan”).

In the Plan, the Minneapolis Fed proposed:

  • requiring covered banks to issue common equity equal to 23.5 percent of risk-weighted assets, with a corresponding leverage ratio of 15 percent, in order to “dramatically increase common equity capital” and “substantially reduce the chance of bailouts”;
  • calling on the U.S. Treasury Secretary to either certify that covered banks are no longer systemically important or subject those banks to an additional 5 percent of risk-weighted assets per year until (i) the Treasury certifies them as no longer systemically important, or (ii) the banks’ capital reaches 38 percent, which the Minneapolis Fed reports is the “level of capital that reduces the 100-year chance of a crisis below 10 percent”;
  • levying a shadow bank tax in order to discourage banking activity from moving to the shadow banking sector, which would equalize funding costs between the two sectors; and
  • allowing the government to reform the current supervision and regulation of community banks by adopting a system that is “simpler and less burdensome while maintaining [the government’s] ability to identify and address bank risk-taking that threatens solvency.”

Because the Plan’s approach could result in “the migration of risky activity from the banking sector to nonbank financial firms, where capital requirements are lower, if they exist at all,” it explained, the Minneapolis Fed proposed to “address this unequal treatment across sectors by taxing the borrowings of large nonbank financial firms – also known as shadow banks.” Effectively, this tax would “make the cost of funds roughly equivalent between large banks and nonbanks.”

The Minneapolis Fed requested feedback on all aspects of the Plan by January 17, 2017.

Lofchie Comment: The Minneapolis Fed’s Plan would attempt to end the problem of too-big-to-fail by driving every large bank out of business through the imposition of massive capital charges. Since putting large banks out of business would cause borrowing activity to move from banks to non-banks, the plan would then impose a tax on large non-bank lenders that effectively would force every large non-bank lender to either become a bank (presumably a small bank, since large banks would be compelled to close) or cease operations.

Since the likely effect of the Plan on the economy of the United States would be significant, the Minnesota Fed might find it useful to project what it believes the Plan’s effects would be and why. It also might be useful for the Minnesota Fed to ask itself (i) if there would be any large banks left, (ii) if there would be any large non-bank lenders left, (iii) how many banks would remain overall, (iv) what effect the Plan would have on the U.S. economy, and (v) whether it is troubling that the Plan effectively would force all large moneylenders to become banks.

Streetwise Professor Claims “Brexit Horror Story” Highlights Dangers of Clearing Mandates

In his latest post on the Streetwise Professor blog, University of Houston Finance Professor Craig Pirrong described the “horror story” of systemic clearing mandates, and explained why he remains skeptical that regulators will “take heed of the lessons of Brexit and take measures to ensure that the next time it isn’t a head shot.”

Professor Pirrong argued that “clearing mandates have supersized the clearing system, and commensurately increased the amount of liquidity needed to meet margin calls.” He highlighted Brexit as a “harrowing example” of “how tightly coupled the system is,” and listed other risk factors that clearing corporations’ response to Brexit have demonstrated. Those risk factors include the following:

  • “[m]uch of the additional margin was to top up initial margin, meaning that the cash was sucked into the [central clearing parties] and kept there, rather than paid out to the net gainers, where it could have been recirculated”; and
  • “each [central clearing party] acted independently and called margin to protect its own interests” – which is “ironic, because one of the alleged justifications for clearing mandates was the externalities present in the [over-the-counter] derivatives markets.”

Professor Pirrong observed that Brexit might prove to be as instructive as it is “horrific”:

Horror stories are sometimes harmless ways to communicate real risks. Perhaps the Brexit event will be educational.

Nevertheless, he concluded, the “clearing mandate is a reality, and is almost certain to remain one.” Given that reality, he maintained, it is doubtful that “whatever is done will make the system able to survive The Big One.”

Lofchie Comment: With respect to central clearing, the systemic risk on which regulators have focused is that clearinghouses will fail. However, the greatest risk created by central clearing as mandated by Dodd-Frank is this: in an attempt to save themselves from the risk of failure, clearinghouses could use their ability to demand an unlimited amount of initial margin from clearing member participants and so drain needed liquidity from the financial system. In other words, clearinghouses likely would save themselves from going under by sucking all of the liquidity out of the financial system. This, in turn, could trigger the failure of clearing members, or their customers who are required to post additional margin. It also could cause a downward spiral of pricing, forcing market participants to liquidate positions in order to eliminate margin calls.

CFTC Commissioner Giancarlo Urges Regulators to Analyze Post-Dodd-Frank “Flash Crashes”

CFTC Commissioner J. Christopher Giancarlo called for a “thorough and unbiased analysis by U.S. financial regulators and their overseas counterparts of the systemic risk of unprecedented capital constraining regulations on global financial and risk-transfer markets.” Commissioner Giancarlo observed that there have been “at least twelve major flash crashes since the passage of the Dodd-Frank Act” including last week’s “abrupt ‘flash crash'” of the British pound. He asserted that:

[Regulators] can no longer continue to avoid the question of whether the amount of capital that bank regulators have caused financial institutions to take out of trading markets is at all calibrated to the amount of capital needed to be kept in global markets to support the health and durability of the global financial system [emphasis in original].

In reference to a Cabinet comment by Steve Lofchie on May 27, 2015, Commissioner Giancarlo asked the following question: “How big will the next flash crash have to be before we realize that markets in which few are able to take risks are markets that are very risky?”

Lofchie Comment: In addition to Commissioner Giancarlo’s concerns about market liquidity, his request for an “unbiased analysis” of the the systemic risk of “unprecedented capital constraining regulations on global financial and risk-transfer markets” is noteworthy. Regulators seem either reluctant or incapable of assessing whether their rulemakings have been successful, or whether certain benefits of the rulemakings might be outweighed by unintended consequences. On that topic, see this recent story about central clearing, in which we ask whether regulators are capable of judging their own work.

 

Streetwise Professor Examines “Fundamental Tension” Underlying CCP Resolution Authority

In response to reports that the European Commission (“EC”) is finalizing legislation on Central Counterparty (“CCP”) recovery, University of Houston Finance Professor Craig Pirrong outlined the sources of “fundamental tension” that underlie the final resolution authority. Citing a statement in the EC’s Executive Summary Sheet that the contemplated framework is likely to involve “a public authority taking extraordinary measures in the public interest, possibly overriding normal property rights and allocating losses to specific stakeholders” (emphasis supplied), Professor Pirrong concluded that the prospect of trampled rights “calls into question the prudence of creating and supersizing entities with such latent destructive potential.”

Professor Pirrong argued that the resolution authority potentially will “impose large costs on members of CCPs, and even their customers, [which] raises the burden of being a member, or trading cleared products,” and consequently, disincentivizes membership. He also asserted that “[t]he prospect of dealing with an arbitrary resolution mechanism will affect the behavior of participants in the clearing process even before a CCP fails, and one result could be to accelerate a crisis, as market participants look to cut their exposure to a teetering CCP, and do so in ways that push[] it over the edge.” According to Professor Pirrong, the irony is that these measures to protect CCPs will lead to a “reduced supply of clearing services, and reduced supply of the credit, liquidity and capital that [such CCPs] need to function.”

In addition, Professor Pirrong cautioned that with discretionary power comes “inefficient selective intervention” and the potential to influence costs. “[T]his makes it inevitable,” he warned, that the body will be subjected to intense rent-seeking activity that will mean that its decisions will be driven as much by political factors as efficiency considerations, and perhaps more so: this is particularly true in Europe, where multiple states will push the interests of their firms and citizens.”

SEC Adopts Enhanced Regulatory Framework for Securities Clearing Agencies

The SEC voted to adopt final rules to require securities clearing agencies that are deemed systemically important or that are involved in complex transactions (“covered clearing agencies”) to “establish, implement, maintain, and enforce policies and procedures reasonably designed to address all major aspects of [their] operations, including [their] governance, risk management (including financial, business, and operational risks), access requirements, and settlement and depository systems.” In addition, the SEC voted to propose the application of these enhanced standards to all SEC-registered central counterparties.

The adopted rules apply to SEC-registered securities clearing agencies that have been designated as systemically important by the Financial Stability Oversight Council (“FSOC”). The rules require a covered clearing agency to have policies and procedures that, among other things:

  • establish the qualifications of members of boards of directors and the senior management of covered clearing agencies, specify clear and direct lines of responsibility, and consider the interests of relevant stakeholders in covered clearing agencies;
  • address recovery and wind-down planning;
  • address daily stress testing, monthly reviews and annual validation of credit risk models;
  • set and enforce appropriately conservative haircuts and concentration limits, and subject them to review annually at the very least;
  • mark positions to market, collect margin at least daily, and conduct daily backtesting and monthly sensitivity analyses, and perform model validation at least annually;
  • address holding “qualifying liquid resources” that are sufficient to withstand the default of the participant family that would generate the largest aggregate payment obligation in extreme but plausible market conditions;
  • test the sufficiency of their liquidity providers;
  • provide for holding liquid net assets funded by equity equal to at least six months of current operating expenses in order to allow covered clearing agencies to continue operations during a recovery or wind-down; and
  • maintain a viable plan, which must be approved by boards of directors and updated at least annually, for raising additional equity should that of covered clearing agencies fall close to or below the required amount.

In his statement at the open meeting, SEC Commissioner Michael S. Piwowar emphasized that he voted for the final rule and proposal, but expressed his misgivings:

I support today’s adopting and proposing releases as the best approach we currently have at setting heightened standards for the clearing agencies we regulate. However, this entire effort has the eerie feeling of re-arranging deck chairs on the Titanic. I hope that history will prove me wrong, but I fear that the Dodd-Frank Act has created too many icebergs for our financial system to safely navigate.

SEC Commissioner Kara M. Stein expressed reservations about the laxity of the final rules, which she said only “marginally decrease the risk posed by systemically important clearing agencies.”

Comments on the final rules must be submitted within 60 days after their publication in the Federal Register. If adopted, the final rules also will become effective 60 days after their publication in the Federal Register. Covered clearing agencies will be required to comply with the final rules no later than 120 days after the effective date.

Lofchie Comment: In statements that might have sounded familiar to Goldilocks, the three SEC commissioners voiced three different views on the final rules: Commissioner Stein said that they do too little, but are better than nothing, Commissioner Piwowar complained that they comprise a part of an ill-conceived scheme of regulation that exacerbates the problem of too-big-to-fail, while Chair Mary Jo White declared that the rules are just right.

CFTC Commissioner Bowen Urges International Regulators to Adopt Similar Rules

CFTC Commissioner Sharon Y. Bowen argued that “regulations and international financial standards need to be broadly aligned, but also be strong enough to ward off undue systemic risk and flexible enough to allow for growth.” In an address before the CFTC Annual Symposium for International Market Authorities, Commissioner Bowen set forth her perspective on the remaining CFTC rulemakings concerning position limits, capital requirements for swap dealers, corporate governance, Regulation AT and cybersecurity. She also weighed in on international developments affecting U.S. markets that “underscore the need for cooperation.”

  • Position Limits: Commissioner Bowen asserted that “a strong position limits rule would not only work to reduce excessive speculation, which can be a major source of systematic risk, but would also make it more difficult for certain market participants to engage in market manipulation successfully.” She noted that CFTC staff has “included within the proposed rule various enumerated hedge exceptions, as well as a process and standard for exchanges to provide market participants the ability to hedge in certain situations.” She hoped that the rule would be finalized within the next few months.
  • Capital Requirements: Commissioner Bowen anticipates that the CFTC will propose capital requirements for swap dealers and major swap participants before the end of the year. While she acknowledged that imposing onerous capital requirements, “such as 35% or even 50% of a portfolio, would inhibit trading and could slow economic growth,” she noted that “[r]equiring a firm to hold a few million dollars in capital against a multi-billion dollar trading book isn’t a regulation that will actually reduce systemic risk and protect firms from imploding. Instead, that kind of de minimis requirement is just a fig leaf.”
  • Corporate Governance: Commissioner Bowen argued for a robust corporate governance rule, including fitness standards that require board directors to have a base understanding for matters under their review, limiting the tenure of independent members of audit and compensation committees, and requiring firms to disclose the level of diversity on their boards.
  • Regulation AT: Commissioner Bowen said that she was “particularly proud of how [proposed Reg. AT] addresses the massive dangers posed by faulty code within algorithmic trading systems.” She noted that the proposed Regulation AT would impose stringent testing requirements on algorithmic trading systems, including testing of new codes prior to use, and regular backtesting using historical data.
  • Cybersecurity: Commissioner Bowen stated that the proposed cybersecurity rule would impose specified testing requirements on DCOs, DCMs, SEFs and SDRs to address the threat of cyber breaches.
  • International Cooperation: Commissioner Bowen cautioned against regulators “drop[ping] to the lowest common denominator when it comes to regulation” and urged global regulators to “fight to craft regulations and international standards that are workable, but provide robust protections to the financial system and to investors.” She encouraged global regulators to consider adopting similar rules as those of the CFTC, emphasizing that: “[u]ltimately, we’re all in this together, and I’d rather have an excellent regulation that is widely adopted across the globe to a perfect regulation that is only adopted here in America.” Commissioner Bowen commended global regulatory cooperation during “Brexit” and opined that the incident demonstrates the importance of strong international cooperation.

Lofchie Comment: Commissioner Bowen’s warning that a single country’s regulators should not go it alone is true. The comment might best be directed at her own agency, the CFTC. There is no other regulator whose conduct has made it such an obvious target of her warning.