Proposed: Private Fund Adviser Systemic Risk Report Rules and Changes to CFTC Regulations

This past week, the Securities and Exchange Commission (the “SEC”) and the Commodity Futures Trading Commission (“CFTC”) jointly proposed rules requiring SEC-registered investment advisers, CFTC-registered commodity pool operators (“CPOs”) and CFTC-registered commodity trading advisers (“CTAs”) that advise private funds to report certain information about their businesses and the private funds they manage.  Information reported on the new proposed forms will be confidential, to the extent permitted under applicable law, and will be used by the Financial Stability Oversight Council to help the Council assess and monitor the potential risk posed to the U.S. financial markets by the private funds.

The CFTC separately proposed related modifications to CPO and CTA regulations, including rescinding Commodity Exchange Act Rule 4.13(a)(3) and Rule 4.13(a)(4), two exemptions from CFTC registration used by many advisers to private funds investing in commodities. Unless otherwise exempt or excluded from the requirement to register, advisers previously exempt under these Rules would be required to register with the CFTC and the advisers and the commodity pools they advise would become subject to certain requirements, including disclosure, financial reporting and recordkeeping.  Registration with the CFTC generally includes registration of the adviser’s principals and associated persons, who would have to satisfy certain proficiency or examination requirements.

The Comment Period on the Proposed Rules will be open for 60 days following publication of the Proposed Rules in the Federal Register.

No New Funds Expected for SEC and CFTC

The Wall Street Journal Online reports that the Senate voted 82-14  this morning to end debate on a continuing resolution for $250 billion to fund the government through March 4, 2011.  It is expected that, after a final vote in the Senate, the resolution will be sent to the House of Representatives for a vote prior to the expiration of the current stop-gap measure at midnight tonight.

According to a Senate Appropriations Committee summary produced late Sunday, the resolution provides a small increase of $1.16 billion over 2010 spending, but it appears that there will be no new funds to help the SEC or CFTC with regulatory reform under Dodd-Frank.  According to the Wall Street Journal Online, the proposed spending plan would give the SEC authority to set up five offices mandated by Dodd-Frank, including a whistleblower office.

A $1.1 trillion omnibus bill, supported by the Democrats and hailed by the SEC and CFTC, would have included an 18% increase in the SEC’s budget ($200 million in new funding), and a 69% increase in the CFTC’s budget ($100 million of additional money).  That bill failed to garner sufficient support and, last Thursday night,  the Dow Jones Newswire reported that  Senate Majority Leader Harry Reid (D-Nev.) had announced that the Senate would focus instead on a short-term funding measure.  At that time, it was reported that the Senate Republicans were considering only a resolution proposed by Minority Leader Mitch McConnell (R-Ky.), which would have simply maintained funding at the 2010 budget levels until February 18, 2011.  The House’s version of a new measure, released in early December, would have shifted more funds to the SEC and the CFTC while maintaining the 2010 budget.

The SEC and CFTC had expected to use the new funding under the omnibus bill to allow the agencies to more  effectively carry out their new responsibilities and implement the many new rules under the Dodd-Frank Act.  These include both agencies’ supervision of the over-the-counter derivatives markets and the SEC’s new power to regulate and examine certain private fund advisers and municipal advisers.   Now, it appears that, despite these  new duties, which both SEC Chairman Mary Schapiro and CFTC Chairman Gary Gensler have said require hiring hundreds of new staff members and significant upgrades in technology, the SEC and CFTC will  be forced to operate within their 2010 budgets.

Although the Obama administration could shift money around to help the SEC and CFTC, it is likely that the Republicans, who did not support Dodd-Frank and will take control of the House of Representatives in January 2011, will attempt to block any such shifts through legislation.

The Wall Street Journal Online reports that Senate Finance Committee Chairman Max Baucus (D., Mont.) remains confident that the Democrats could still win funding battles for financial regulation.  Sen. Richard Shelby (R., Ala.), however, is quoted as  saying, “It’s going to be a big political fight. I think the odds shift toward Republicans.”

Senate Spending Bill would Increase SEC and CFTC Budgets; SEC and CFTC Meetings this Week

Senate Spending Bill

Reuters is reporting that a Senate spending bill released today will give an increase of 18% in the SEC’s 2011 budget  to $1.3 billion and an increase of 69% in the CFTC’s 2011 budget to $286 million (in excess of the funding requested by that agency).  These increases should give the agencies the monies they need to implement the many new rules being put in place pursuant to Dodd-Frank, in particular the rules governing the over-the-counter derivatives market.  Both agencies had warned of delays resulting from lack of funds and the SEC (whose fiscal year began October 1) recently announced that, because of budget uncertainty, it was deferring setting up new offices, including the whistleblower office and those overseeing credit rating agencies and municipal securities.

In order for the agencies to receive their funds, the Senate must now pass the bill and then merge its bill with the House spending bill which has already been passed and includes large increases for these agencies.

SEC Open Meeting

Among the items to be discussed at tomorrow’s Open Meeting at the SEC:

  • Rule and form amendments to establish a process for the submission for review of security-based swaps for mandatory clearing and notice filing requirements for clearing agencies; and
  • An end-user exception to mandatory clearing of security-based swaps for certain counterparties.

CFTC Public Meeting

The CFTC will hold a public meeting on Thursday, December 16, to consider rules whose effect will be to limit speculation in the commodity derivatives markets.  The CFTC plans to propose rules that will set:

  • “Position limits” on how many physical commodity derivative contracts a single speculator can hold;
  • Confirmation, portfolio reconciliation and portfolio compression requirements for swap dealers and major swap participants;
  • Risk management requirements for derivatives clearing organizations;  and
  • Core principles and other requirements for swap execution facilities.

The CFTC is expected to produce new rules by late January.

SEC December Activities Implementing Dodd-Frank

The SEC staff continues to carry out the rulemaking and proceed with the studies mandated by the Dodd-Frank Act.

The SEC’s  “Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act” web page consolidates links to all of the SEC’s related accomplishments to date, includes a calendar of its planned activities implementing the Dodd-Frank Act through July 2011 and provides a link to comments the SEC has received on both rulemaking and planned studies.

In November, the SEC proposed the following: an anti-manipulation rule for security-based swaps, a Whistleblower Incentives and Protection Program, rules regarding the registration and regulation of security-based swap repositories and security-based swap reporting and, most recently, exemptions from investment adviser registration for venture capital firm advisers and certain private fund advisers, as well as rules and changes to forms to implement the transition of mid-sized investment advisers from SEC to State regulation.

Highlights of the December, 2010 calendar most relevant to hedge funds and investment advisers include: Continue reading

SEC November Activities Implementing Dodd-Frank

The SEC staff continues its hard work on the rulemaking and studies mandated by the Dodd-Frank Act, signed into law by President Obama on July 21, 2010.

The SEC’s webpage captioned “Implementing the Dodd-Frank Wall Street Reform and Consumer Protection Act” consolidates links to all of the SEC’s related accomplishments to date, and includes a calendar of its planned activities implementing the Dodd-Frank Act through July 2011.

Highlights of the November, 2010 calendar relevant to hedge funds and investment advisers include:

  • §§407 and 408: Propose rules implementing the exemptions from registration for advisers to venture capital firms and for certain advisers to private funds
  • §410: Propose rules and changes to forms to implement the transition of mid-sized investment advisers (between $25 and $100 million in assets under management) from SEC to State regulation, as provided in the Act
  • Continue reading

Joint CFTC-SEC Public Roundtable: Credit Default Swaps

The SEC has been working closely with the CFTC to coordinate their respective agencies’ rulemakings related to derivatives markets.  Most recently, the SEC and CFTC  staffs held a joint public roundtable on October 22 from 9 a.m. to noon to discuss issues related to the clearing of credit default swaps. The roundtable is meant to assist both agencies in the rulemaking process to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The Agenda for the Roundtable follows.  A transcript of the public roundtable discussion will be published on the CFTC’s website. Continue reading

Joint SEC-CFTC Report on May 6th “Flash Crash” Implicates High-Frequency Trading

On October 1, the SEC and CFTC issued a Joint Report on the Market Events of May 6th 2010 which will be presented to the Joint CFTC-SEC Advisory Committee on Emerging Regulatory Issues.  The report builds on the preliminary analysis released by the SEC and CFTC staffs on May 18, 2010 and implicates high-frequency trading.

Focusing on the relationship between E-Mini Standard & Poor’s 500 futures and S&P 500 “SPDR” exchange-traded funds, the staffs concluded that a computer-driven sale worth $4.1 billion by a single trader helped trigger the May “flash crash.”  The report describes how the “interaction between automated execution programs and algorithmic trading strategies” set off a liquidity crisis and resulted in disorderly U.S. futures and stock markets.

In the past months, the SEC has aggressively pursued ways to respond to the flash crash.  Within weeks of May 6th, the SEC proposed establishing a consolidated audit trail of all stock trading (reported in a May 28 Compliance Avenue post).  In June, the SEC initiated a program of new trading curbs known as circuit breakers (reported in a June 17 Compliance Avenue post) and in September approved rules expanding the stock-by-stock circuit breaker program.

CFTC Chairman Gary Gensler and SEC Chairman Mary L. Schapiro issued the following statement in connection with the report:

“We appreciate the incredible effort of all the professionals at both agencies who have worked tirelessly, scouring the data, interviewing market participants and reconstructing the events of May 6th.  This report identifies what happened and reaffirms the importance of a number of the actions we have taken since that day.  We now must consider what other investor-focused measures are needed to ensure that our markets are fair, efficient and resilient, now and for years to come.”

In the wake of the Joint Report, regulators are urging that additional rules be put in place to ensure proper functioning of the U.S. markets.

International Investigations: Last Thursday, there were reports of plans by both Britain and the European Union to investigate high-frequency trading.   Reuters reported that Britain has commissioned a UK Treasury study into the practice of high-frequency trading amid concerns that a computer-generated error could affect the economy.  Bloomberg reported that the Committee of European Securities Regulators will also investigate high-frequency trading and consider setting up a consolidated tape for the European Union.

Joint Statement by CFTC Chairman Gary Gensler and European Commissioner Michel Barnier on the Financial Reform Agenda

Washington, DC –United States Commodity Futures Trading Commission (CFTC) Chairman Gary Gensler and European Commissioner Michel Barnier spoke today and reaffirmed their strong determination to cooperate closely in strengthening the global financial system. Specifically, Chairman Gensler and Commissioner Barnier discussed regulatory reform of the over-the-counter (OTC) derivatives markets with respect to Dodd-Frank Wall Street Reform and Consumer Protection Act and the September 2010 European proposal for a Regulation on OTC derivatives, central counterparties and trade repositories. Continue reading

SEC, CFTC Seeking Public Comment on Definitions and Regulation of Mixed Swaps

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On August 13, 2010, the Securities and Exchange Commission and the Commodity Futures Trading Commission announced that they had published an advance joint notice of proposed rulemaking that requests public comment to assist the agencies in further defining certain key terms and prescribing regulations regarding “mixed swaps” as required by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act.

Title VII provides for the comprehensive regulation of swaps and security-based swaps and includes definitions of key terms relating to such regulation. It requires the CFTC and the SEC, in consultation with the Board of Governors of the Federal Reserve System, to jointly further define the terms “swap,” “security-based swap,” “swap dealer,” “security-based swap dealer,” “major swap participant,” “major security-based swap participant,” “eligible contract participant” and “security-based swap agreement.”

Title VII also requires the CFTC and SEC to jointly prescribe regulations regarding “mixed swaps” as necessary to carry out the purposes of Title VII.

The CFTC and SEC invite public comment with respect to all aspects of the statutory definitions of these key terms. The agencies also invite commenters to express views on the regulation of “mixed swaps.”

This request for comment is in addition to the series of email links on the CFTC’s and SEC’s websites to facilitate public comment regarding regulatory reform rulemaking under the Dodd-Frank Act.

The public comment period will remain open for 30 days following publication of the advance notice in the Federal Register. Commenters are urged to submit comments as soon as possible within the 30-day comment period.

SEC, CFTC to Host August 20 Roundtable on Clearing and Listing of Swaps and Security-Based Swaps

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The Securities and Exchange Commission and Commodity Futures Trading Commission staffs will hold a public roundtable on August 20 to discuss issues related to governance and conflicts of interest in the clearing and listing of swaps and security-based swaps.
The roundtable will assist both agencies in the rulemaking process to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act.

The roundtable will be held at the CFTC hearing room at Three Lafayette Centre, 1155 21st Street NW, Washington, D.C. The discussion will be open to the public with seating on a first-come, first-served basis. Members of the public may also listen by telephone and should be prepared to provide their first name, last name, and affiliation.
  • U.S./Canada Toll-Free: (866) 312-4390
  • International Toll: (404) 537-3379

Conference ID: 94280143

Members of the public wishing to submit their views on the topics addressed at the discussion may do so through the comment form or e-mail address on the SEC website or the governance rulemaking page on the CFTC website.

All submissions provided to either the CFTC or the SEC in any electronic form or on paper will be published on the website of the respective agency, without review and without removal of personally identifying information.

Below is a copy of the meeting’s agenda from the SEC website.

# # #

Agenda for the Joint CFTC-SEC Public Roundtable Discussion

9:00 a.m. Opening Statements by CFTC and SEC Staff

9:15 a.m. Panel One — Types of Conflicts
  • Securities Clearing Agencies and Derivatives Clearing Organizations
    • Access to clearing
    • Determination of swaps eligible for clearing
    • Risk management
  • Security-Based Swap Execution Facilities and Swap Execution Facilities
    • Access to trading
    • Determination of swaps eligible for trading
    • Potential for competition with respect to the same swap
  • Designated Contract Markets and National Securities Exchanges
    • Listing of swaps
    • Comparison with conflicts of interest for Swap Execution Facilities and Security-Based Swap Execution Facilities: similarities and differences
10:45 a.m. Panel Two — Possible Methods for Remediating Conflicts
  • Ownership and voting limits
  • Structural governance arrangements
    • Independent or public director requirements for Board and Board committees
    • Consideration of market participant views: Derivatives Clearing Organizations and Designated Contract Markets
    • Fair representation requirement in the Securities Exchange Act
    • Other governance matters (e.g., transparency)
  • Substantive requirements
    • Membership standards
    • Impartial access requirements
  • Appropriateness of applying the same methods to each type of entity
12:00 p.m. Roundtable concludes