Rep. Markey Letter to SEC on High-Frequency Trading

In a letter to the SEC, Rep. Edward Markey (D-Mass.) has suggested that, because of a 1989 law he co-sponsored, the agency has the ability to slow down, or even stop, high-frequency trading.  Rep. Markey has referenced a law that gives the SEC power to “limit practices which result in extraordinary levels of volatility.”

Lofchie Comment:  I worry about the increased assertions that high-frequency trading should be banned as a bad thing without any acknowledgement of quite significant regulatory studies to the effect that HFT has a generally positive effect on financial markets.
 
The letter complains that (i) trading volume in the U.S. markets is down and (ii) HFT accounts for over 70% of trading volume.  Doesn’t it follow then that banning HFT would have a very material negative impact on trading volume and liquidity, maybe even a devastating impact?

Beyond that, I am puzzled as to why high-speed trading and algorithms by institutions are portrayed as bad for retail investors.  To the extent that such trading acts to instantaneously eliminate market pricing inefficiencies, isn’t that good for retail investors?

The letter further suggests that Wall Street firms should not be allowed to trade “millions of times faster than the average 401k investor on the S&P 500.”  But it is not clear whether thousands of times faster is OK, or tens of times, or double.   In fact, the letter goes on to suggest that a “few Wall Street firms” should not be allowed to “outperform ordinary investors with a laptop.”  If that is the case, then one would also wonder whether institutional investors should be permitted to do financial research: doesn’t that also permit them to outperform ordinary investors?

View letter in full here (links externally to House website).
The “law” to which the letter refers is Section 9(i) of the Securities Exchange Act.

Battle Over Swaps Trade Reporting

The CFTC is extending the time period for which it is reviewing a request from the Chicago Mercantile Exchange Inc. (“CME”) for approval of proposed CME Rule 1001 submitted pursuant to CFTC Rule Section 40.5.  Essentially, the proposed CME Rule would require that swaps cleared on the CME be reported to the Swap Data Repository (“SDR”) maintained by the CME.  As we had previously reported, the CFTC would have originally required that the parties to a swap be able to select the SDR to which their data would be reported.  This CFTC position had been challenged in court by the CME, and, in order to avoid that litigation, the CFTC had allowed the CME to submit a rule proposal that would allow the CME to mandate a link between clearing and trade reporting. 

The review period is being extended 45 days to expire on March 6, 2013.

Lofchie Comment:  Responses to the CFTC’s proposal (a link to the letters is provided below) have been largely based on the party’s economic interests.  Those parties that saw the CME’s proposal as depriving them of a business opportunity (DTCC) or raising costs to them (i.e., sell-side organizations and the majority of buy-side organizations) opposed the CME’s proposal.  Those parties that saw the CME’s proposal as providing them with a business opportunity (other swaps clearing corporations) or lowering costs to them (some buy-side organizations) favored the CME’s proposal.  

From a public policy standpoint, one fundamental issue is whether swap data should be subject to a forced centralization at a single SDR, which would favor reporting to DTCC. 

Beyond that, the fight over this issue is generally indicative of the manner in which Dodd-Frank will allow or require the government to determine economic winners and losers by virtue of the rules that the government adopts.  This is a result that is obviously not limited to Dodd-Frank.  In fact, in the securities markets, there is an ongoing battle that sometimes comes into public view as to who owns, and is allowed to profit from the ownership of, data as to the securities transaction information.  The battle over this swap data is in large part another version of that same fight over who has ownership of transaction information.

 

View Press Release in full here (links externally to CFTC website).
View: Collected comment letters on the CFTC website. 

View on “Chinese Currency Manipulation Is Not the Problem”

In a recent WSJ op-ed Chinese ‘Currency Manipulation’ Is Not the Problem (Jan. 8), Edward Lazear concluded that the valuation of the Chinese yuan (CNY) is irrelevant for trade.  This is highly mistaken.

Lazear correctly noted that the Chinese trade surplus mushroomed during the period 1995 to 2005, when the CNY was pegged.

However, the analysis misses the fact that the CNY was actually undervalued at the start of the period referenced.  A whopping 60 cents was needed to purchase one yuan in 1980.  By 1995, the currency had fallen to a scant 12 cents.  Based on our calculations of currency valuations across a universe of 49 exchange rates, no currency was as undervalued as the yuan in 1995.  So, even if the price of a product or currency increases over time, smart consumers will still buy if the product is still cheap.

In recent years, the People’s Bank of China (PBOC) and National Development and Reform Commission (NDRC) have introduced greater flexibility into CNY trading.  This has helped reduce the trade surplus from a peak of $300 billion in 2008 as well as promote a shift from exports to domestic consumption as drivers of demand.

Bretton Woods and Brazil Interview, Part Two

This post concludes an e-mail interview I had with Cyro Franklin de Andrade, editor of the Brazilian magazine Valor econômico. The first part is in a previous post. Questions are in italics, answers are in Roman (regular) type.

8. You say that “talented delegates played important roles out of proportion of the small size of their countries”. Could you please elaborate on this?

The European countries at the conference except for the Soviet Union and the United Kingdom were all under German occupation. The delegates from those countries represented governments in exile, which had no domestic political power. In addition, many of them were from countries that, even after the war ended, could not be expected to have great importance to the world economy. Even so, because of their keen intellects, delegates from Greece (Kryiaks Varvaressos), Norway (Wilhelm Keilhau), and Czechoslovakia (Ervin Hexner) had important jobs as committee “reporters” (who summarized events in lower-level committees to the higher-level “commissions”). They also were active in debate as delegates of their countries, and they influenced the opinions of the other delegates. From Latin America, Luis Machado of Cuba was also such a delegate.

9. Another criticism is that the Americans and the British sought to avoid voting, preferring to seek decisions by consensus. It would be a way of avoiding the influence of Latin American countries, which represented more than half of the countries and could form majority with the support of only a few Europeans. Is this true? Can it be perceived in the transcripts?

The delegates understood that deciding important questions strictly by votes, rather than by first achieving consensus, would be counterproductive, and there is discussion of that point in the transcripts. Most of the capital for the IMF and World Bank would come from the largest economies, which could refuse to participate if outvoted at the conference by the smaller economies. On the other hand, the large economies understood that the small economies could equally refuse to participate if the large economies tried to dictate matters. So, it was clear that without a consensus across the large and small economies alike, the IMF and World Bank would not be the truly worldwide institutions that the countries participating wanted them to be. The conference was a first step in seeing whether consensus could be achieved. It was, and after the IMF and World Bank began operations, they operated, and to a large extent have continued to operate, on the basis of consensus.

10. The method of avoiding votes by pausing for objections has been attributed to Keynes, and sometimes very briefly indeed, avoiding the hazard of debate. Is this true? Is this apparent from the transcripts?

Keynes was eager to move quickly. The IMF was the top priority of the Bretton Woods conference. Until just before the conference, it was uncertain whether an agreement on the World Bank was even possible. The conference focused on the IMF in its first days, and did almost nothing concerning the World Bank until halfway through the conference. Ultimately, the important issues concerning the World Bank do seem to have been debated, but unfortunately no transcripts of those meetings exist.

11. Committee 3, on “Organization and Management of the Fund”, was chaired by Arthur de Souza Costa, Brazil’s Minister of Finance. Why was he chosen for this task? Is there any special detail you would like to mention on how Souza Costa has acted in this role?

The organizers of the conference wanted broad participation, not domination by a few countries. They were careful to ensure that important jobs, such as committee chairmanships, were distributed among many countries. Therefore Brazil, which was already a large economy among what we would today call the emerging markets, was almost certain to receive one of the important jobs. Arthur de Souza Costa was the leader of the Brazilian delegation, experienced in financial matters, and spoke good English, the official language of the conference.

As the chairman of Committee 3, my impression is that he had a “light touch” as chairman: he kept the committee on schedule but was content to let the more active delegates and the committee’s “reporter,” Ervin Hexner of Czechoslovakia, shape the debate.

As you may be aware, in late 1944, after returning to Brazil, de Souza Costa gave a speech that was published as a pamphlet, Bretton Woods e o Brasil. Unfortunately–from my perspective–it says very little about his personal experiences at the Bretton Woods conference; it is mainly about the rationale for the IMF and the World Bank. Perhaps there is material in Brazilian archives and personal papers from such people as him, Roberto Campos, Eugênio Gudin, or Francisco Alves dos Santo-Filho that a Brazilian researcher could use to deepen our knowledge about the conference.

Agencies Issue Final Rule on Appraisals for Higher-Priced Mortgage Loans

Federal financial regulatory agencies issued a final rule that establishes new appraisal requirements for “higher-priced mortgage loans”.  This rule implements the Truth in Lending Act amendments under the Dodd-Frank Act.  The rule exempts several types of loans, such as qualified mortgages, temporary bridge loans and construction loans, loans for new manufactured homes, and loans for mobile homes, trailers and boats that are dwellings. The rule also has exemptions from the second appraisal requirement to facilitate loans in rural areas and other transactions.

The rule is being issued by the Board of Governors of the Federal Reserve System, the Consumer Financial Protection Bureau, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the National Credit Union Administration, and the Office of the Comptroller of the Currency.

Effective Date: January 18, 2014.

View Final Rule in full here (links externally to Federal Reserve website).
See also: OCC Press Release; FDIC Press Release

Disclosure and Delivery Requirements for Copies of Appraisals and Other Written Valuations Under the Equal Credit Opportunity Act (Reg B); Final Rule, Official Interpretations (CFPB – Pre Fed. Reg. Version)

The CFPB has amended Regulation B and the commentary to the regulation.  The final rule revises Regulation B to implement an Equal Credit Opportunity Act (ECOA) amendment concerning appraisals and other valuations that was enacted as part of the Dodd-Frank Act.

In general, the revisions to Regulation B require creditors to provide to applicants free copies of all appraisals and other written valuations developed in connection with an application for a loan to be secured by a first lien on a dwelling, and require creditors to notify applicants in writing that copies of appraisals will be provided to them promptly.

Effective Date: January 18, 2014.

Cross-Reference(s): Dodd-Frank Section 1474 (“Equal Credit Opportunity Act amendment”).

Click here to view rule release in full (links externally to CFPB website).
See also: Text of regulatory amendment only; Official interpretations onlyEqual Credit Opportunity Act (Reg B) as proposed (77 FR 50390).

Final FATCA Regulations Issued by Treasury

The U.S. Department of Treasury and the Internal Revenue Service published comprehensive final regulations implementing the information reporting and withholding tax provisions of the Foreign Account Tax Compliance Act (“FATCA”).  The final regulations build on intergovernmental agreements (“IGAs”) that the Treasury has negotiated with several countries and coordinate definitions, exemptions and due diligence obligations with those set forth in such IGAs. The final regulations also expand and clarify the treatment of certain categories of low-risk institutions, such as governmental entities and retirement funds, and attempt to reduce the potential for duplicative reporting and provide streamline reporting for groups of financial institutions, including commonly managed investment funds. As previously indicated, the final regulations exempt from FATCA withholding all obligations outstanding on January 1, 2014 and any agreement requiring a secured party to make payments with respect to collateral securing one or more grandfathered obligations (even if the collateral is not itself a grandfathered obligation). A withholding agent, other than the issuer of the obligation or the issuer’s agent, may (absent actual knowledge) rely on a written statement from the issuer of the obligation to determine whether the obligation is grandfathered. Registration under FATCA will be done on line through a secure FATCA Registration Portal designed to accomplish an entirely paperless registration process. Registered Foreign Financial Institutions (“FFIs”) will be issued a Global Intermediary Identification Number (“GIIN”) which the FFI will use to establish its compliance with FATCA with withholding agents. The IRS anticipates that GIIN may also be used with respect to reporting by FFIs to local governments under Model 1 IGAs. The IRS will electronically publish a list of participating FFIs and registered deemed-compliant FFIs on December 2, 2013 and update the list monthly. An FFI must register by October 25, 2013 to ensure its inclusion on the December 2013 list.

The Final Regulations become effective on the date such regulations are published in the Federal Register (expected to be January 28).

View Final Regulations.
See also: News Release by Treasury.

SEC Commissioner Gallagher’s Speech: ”Perils of False Narratives”

SEC Commissioner Daniel M. Gallagher delivered a speech before the U.S. Chamber Center for Capital Markets Competitiveness addressing what he believes to be false assumptions underlying the Dodd-Frank Act.  Commissioner Gallagher asserted that the Dodd-Frank Act has failed to address crucial issues, such as the reform of Freddie Mac, Fannie Mae and money market mutual funds, as well as the inadequacies of the short-term funding model of banks that continue to be too big to fail. Commissioner Gallagher also stated that the Act fails to eliminate the redundancy of having regulators share jurisdiction over substantially similar markets and products.

In addition, according to Commissioner Gallagher, rushed and inadequate rule proposals are pushed out in the attempt to meet congressional deadlines, inevitably leading to final rules that lack substantive quality. The Commissioner used the Volcker Rule to further highlight and discuss the ways in which the SEC should instead focus on addressing mandates in the JOBS Act, and the basic “blocking and tackling” issues which affect investors the most.

Lofchie Comment:  I am always encouraged when I see leaders at the regulatory agencies who are as critical (or almost as critical) of Dodd-Frank as I am, and who are able to be critical in more measured tones than I. 

While I have little of substance to add to Commissioner Gallagher’s remarks, I am going to add another concern.  I have just returned from a visit to the firm’s clients in Asia and one of the things that worried me most as an American citizen (and as a financial industry lawyer) is that Asian financial entities (both buy-side and sell-side) expressed reluctance to do business with U.S.-based swap dealers or to risk subjecting themselves to U.S. jurisdiction.  If one believes that it benefits the U.S. economy to be the world’s financial center, and that, conversely, it will injure our economy to lose that status, the fact that non-U.S. firms are afraid of doing business in the United States means bad things for our economy, both in the short and the long term.

View speech in full here (links externally to SEC website).

MSRB Seeks Input on Development of New Municipal Trade Reporting System

The MSRB announced in a regulatory notice that it is seeking input from municipal securities market participants to guide the design of the next generation of electronic reporting and public dissemination of municipal securities trades.  According to the notice, one of the core elements of the MSRB’s long-range plan for market transparency is the development of a central transparency platform to enhance public access to real-time pricing information about municipal securities transactions. As part of its information-gathering process, the MSRB is requesting market input on potential improvements to the timeliness, fairness and efficiency of price transparency in the municipal market.

Comments Due: March 15, 2013.

Lofchie Comment:  As noted previously, SEC Chairman Walter regards the municipal securities market as one of her principal priorities.  Accordingly, firms are well advised to provide input, as there will be significant rulemaking from both the MSRB and the SEC in this area.  Here is a link to the news item we published when Chairman Walter took over her post; it lists a number of her speeches on the topic of municipal securities.  SEC Chairman Mary Schapiro to Step Down; Commissioner Elisse Walter to Become Chairman

Click here to view regulatory notice in full (links externally to MSRB website).

Mortgage Servicing under the Real Estate Settlement Procedures Act (Reg X); Final Rule, Official Interpretations (CFPB – Pre-Fed. Reg. Version)

The CFPB has amended Regulation X and issued an official commentary to the regulation with respect to mortgage servicer obligations.  The amendments implements the sections of the Dodd-Frank Act addressing servicers’ obligations to:

  • Correct errors asserted by mortgage loan borrowers;
  • Provide certain information requested by such borrowers; and
  • Provide protections to such borrowers in connection with force-placed insurance.

The regulation further addresses servicers’ obligations to:

  • Establish reasonable policies and procedures to achieve certain delineated objectives;
  • Provide information about mortgage loss mitigation options to delinquent borrowers;
  • Establish policies and procedures for providing delinquent borrowers with continuity of contact with servicer personnel capable of performing certain functions; and
  • Evaluate borrowers’ applications for available loss mitigation options.

This final rule also modifies and streamlines certain existing servicing-related provisions of Regulation X.

Effective Date: January 10, 2014.

Cross-Reference(s): Dodd-Frank Sections 1411 (“Ability to Repay”), 1412 (“Safe Harbor and Rebuttal Presumption”), and 1414 (“Additional Standards and Requirements”).

Click here to view rule release in full (links externally to CFPB website).
See also: Text of rule amendment only; Official interpretations only; Mortgage Servicing Rule under the Real Estate Settlement Procedures Act as proposed (77 FR 57199).