The Financial Conduct Authority published its fourth consultation paper on the implementation of the revised Markets in Financial Instruments Directive in the UK. MiFID II regulates retail and wholesale investment business. The consultation covers technical matters that were outside the scope of previous consultations and includes proposed changes to the FCA Handbook on specialist regimes, tied agents, market data, SME growth markets and transitional fees. 

The FCA is proposing to update section 18 of the Conduct of Business sourcebook of the Handbook by updating cross-references to correspond to the FCA's proposed changes to other sections of COBS. COBS 18 contains a number of tailored conduct regimes covering both MiFID and non-MiFID business, for specialist types of designated investment business. 

The FCA is proposing amendments to Handbook rules on appointed representatives to reflect the technical changes in MiFID II and the tied agents regime. The proposals are particularly relevant to firms undertaking MiFID or equivalent third country business. Under MiFID II, all Member States will be required to maintain tied agents regimes, whereas they currently have an option as to whether to do so. As a result, the FCA is seeking to clarify the territorial application of the appointed representative rules. MiFID II also changes the scope of permitted activities relating to structured products for tied agents and the FCA is proposing to introduce new definitions of “MiFID optional exemption AR” and “structured deposit AR”. The new terms will define the new populations of authorised representatives to which MiFID tied agent requirements will also apply.

Read more.

Ten decisions on the equivalence of third country regulatory regimes under the European Market Infrastructure Regulation were published in the Official Journal of the European Union. 

CCPs established in third countries whose supervisory and legal regimes have been deemed to be equivalent to the EU regime may provide clearing services to clearing members or trading venues established in the Union. Such a CCP must be recognized by the European Securities and Markets Authority in accordance with the processes outlined in EMIR. The regulatory and legal regimes of India, New Zealand, Japan, Brazil, Dubai International Financial Centre and the UAE have been granted equivalence in relation to CCPs. 

Read more.

The Financial Stability Board launched a consultation on proposed Guidance on continuity of access to financial market infrastructures for a firm in resolution. The FSB's Key Attributes of Effective Resolution Regimes for Financial Institutions provides that resolution authorities should develop resolution strategies and plans for firms that are systemically important. One objective of those plans is to ensure that a firm can maintain its critical functions during resolution. In particular, access to the services that support those functions, including access to services provided by FMIs such as clearing, payment, settlement and custody shared services, should be maintained.

The proposed Guidance is intended to assist national supervisors and resolution authorities to evaluate whether a firm has appropriate arrangements to support continuity of access to critical FMI services in all circumstances. The proposed Guidance covers the arrangements needed to support access to FMIs at the level of providers of critical FMI services, arrangements at the level of the firm and/or FMI participants and the role of FMI supervisors in facilitating continuity of access to critical FMI services. Responses to the consultation are requested by February 10, 2017.

View the consultation paper.

The European Central Bank published the outcome of its second Supervisory Review and Evaluation Process in 2016 and updated Recommendations on dividend distribution and remuneration policies for 2017. The ECB comments that SREP outcomes reveal a broadly stable capital demand for 2017 and that any changes in individual bank levels reflect changes in individual bank risk profiles. The aggregate capital demand by directly supervised banks for 2017 is comparable to that of 2016, with an average of around 10% Common Equity Tier 1. The ECB also imposed liquidity measures that require banks to have higher liquidity coverage ratios than the regulatory minimum. 

The updated ECB Recommendations on dividend distribution and remuneration policies are to be adopted in 2017, for the financial year 2016. The ECB has maintained its general stance on both topics whilst accounting for regulatory change on the obligation of the supervisor to differentiate between the types of Pillar 2 capital that a bank is required to hold. 

View the press release. 

View the recommendations.

The US CFTC issued a no-action relief letter for swaps executed between certain US swap market participants and their affiliated counterparties located in Australia or Mexico. The letter permits US swap market participants to rely on a provision of the inter-affiliate exemption from required clearing that has previously been available to counterparties located in the European Union, Japan, and Singapore. According to the CFTC, the letter was issued in light of the December 13, 2016 compliance date for the CFTC’s recent expansion of its clearing requirement to include fixed-floating interest rate swaps denominated in Australian dollars and Mexican pesos, as well as basis swaps denominated in Australian dollars.

View no-action relief letter.

The US Federal Reserve Board issued a final rule establishing total loss absorbing capacity (TLAC) long-term debt (LTD), clean holding company requirements and regulatory capital deductions for US global systemically important banks (G-SIBs) and the US intermediate holding companies of non-US G-SIBs. While the final TLAC rule is largely consistent with the Federal Reserve Board’s proposed rule issued in October 2015, the Federal Reserve Board made certain adjustments in the final rule in response to comments received. Notably, the Final Rule: (1) lowered certain of the TLAC and LTD requirements; (2) allows certain US intermediate holding companies to issue external LTD rather than require all such LTD to be issued to the foreign parent company or affiliate; (3) allows for the grandfathering of certain long-term debt including debt that was issued prior to December 31, 2016 and contained acceleration clauses or was governed by foreign law; and (4) removed the phase-in periods provided for under the proposed rule. Institutions that meet the relevant thresholds under the final rule would be required to comply with the requirements by January 1, 2019.

View final rule.

The US Office of the Comptroller of the Currency released a final rule to remove outdated or unnecessary provisions of certain rules to reduce regulatory burden. The rule is a result of the OCC’s decennial review of its rules required by the US Economic Growth and Regulatory Paperwork Reduction Act (EGRPRA) of 1996. While the OCC is conducting the EGRPRA review jointly with the other federal financial regulatory agencies, the final rule addresses regulations that are exclusive to the OCC. Of note, the final rule: removes notice and approval requirements for certain changes in permanent capital involving national banks; clarifies national bank director oath requirements; removes certain financial disclosure requirements for national banks;  integrates and updates OCC rules for national banks and federal savings associations relating to municipal securities dealers, Securities Exchange Act of 1934 disclosures, securities offering disclosures and insider and affiliate transactions; updates recordkeeping and confirmation requirements for national banks’ and federal savings associations’ securities transactions; and permits the electronic submission of filings required under the Securities Act of 1933 and the Securities Exchange Act. The OCC has also recommended legislative chances that would remove unnecessary burden for national banks and federal saving associations.

View final rule.

The European Securities and Markets Authority published proposals for amending the Regulatory Technical Standards on the data to be published and made available by trade repositories and operational standards for aggregating, comparing and accessing the data. The European Market Infrastructure Regulation requires trade repositories to regularly publish aggregate positions by class of derivatives on the contracts reported to it and to provide access to the data that it collects and maintains to relevant authorities and regulators. ESMA was responsible for preparing the original RTS on the frequency and the details of the information to be made available as well as the operational standards required for aggregation and comparison of data across trade repositories. 
 

A Commission Delegated Regulation outlining Regulatory Technical Standards supplementing the European Market Infrastructure Regulation on risk mitigation techniques for uncleared OTC derivatives was published in the Official Journal. EMIR requires counterparties to uncleared OTC derivative transactions to implement risk mitigation techniques to reduce counterparty credit risk. These RTS prescribe the regulatory margin amounts to be posted and collected and the methodologies by which the minimum amount of initial margin and variation margin should be calculated as well as outlining a broad list of securities eligible as collateral for the exchange of margins, such as sovereign securities, covered bonds, specific securitizations, corporate bonds, gold and equities.

The RTS provide for the largest counterparties to begin providing and collecting margin one month after the RTS enter into force. The requirements relating to variation margin will apply from one month after the RTS enter into force where both counterparties have, or belong to groups each of which has, an aggregate average notional amount of uncleared OTC derivatives above EUR 3,000 billion. For all other counterparties, the variation margin requirements will apply from the latest of 1 March 2017 or one month after the RTS enter into force.

Read more. 

The European Banking Authority published its final Report on the design and implementation of the minimum requirement for own funds and eligible liabilities framework. MREL is the EU equivalent of the US Total Loss Absorbing Capacity (known as TLAC) rule. The Report is addressed to the European Commission following publication of its proposed banking reform package on November 23, 2016 which included proposals to amend the Bank Recovery and Resolution Directive and the Capital Requirements Regulation to integrate the TLAC standard into the EU's MREL framework. The EBA does not currently consider that any changes to the key principles underlining the Regulatory Technical Standards (adopted by the Commission in May 2016) on the criteria for setting MREL are needed. The Report does, however, identify changes with a view to improving the technical soundness of the MREL framework and implementing the TLAC standard as a key component of that framework. The EBA has made recommendations on twelve topics.

Read more.

The European Banking Authority published final draft Regulatory Technical Standards on the cooperation and exchange of information between national regulators where an authorized payment institution would like to provide payment services in a Member State other than its home Member State (so-called passporting) under the Payment Services Directive (also known as PSD2). The Directive aims to make payments between Member States as secure, easy and efficient as those made within a Member State. PSD2 focuses on electronic payments and payment services within the EU, regulating new types of payment services and payment services providers, which are currently unregulated, and stimulating competition in the electronic payments market. The RTS aim to ensure that information about those entities that carry out business in EU Member States is exchanged between national regulators in a consistent way, that there is clarity for payment institutions about their regulatory requirements and specifies the information that is to be shared between national regulators. The EBA consulted on draft RTS in late 2015 and, having taken feedback into account, has made certain amendments to the final draft RTS, including removing some of the information requirements on payment institutions relating to governance arrangements and internal control mechanisms, outsourcing and the agent structural organization. In addition, the EBA has now provided separate templates for when a payment institution or e-money institution is using an agent or when a distributor is used. 

Read more.

The Financial Conduct Authority launched a consultation on the future funding of the Financial Services Compensation Scheme as well as changes to the FSCS rules. The FSCS is the compensation scheme for customers of UK authorized financial services firms. It covers the business conducted by firms authorized by the Financial Conduct Authority and the Prudential Regulation Authority and protects, subject to certain limits, deposits, investment business, home finance, insurance policies and insurance broking. The FSCS is funded by contributions from firms across the financial services sector. The FCA's consultation follows the Financial Advice Market Review, conducted by HM Treasury and the Financial Conduct Authority, which concluded that the scale and impact of FSCS levies has increased sharply for certain firms recently, particularly those required to contribute towards claims for self-invested personal pensions. This causes concerns relating to the unpredictability of levies and, in some sectors, a relatively small number of firms being responsible for a large proportion of compensation claims.  

Read more.

The European Banking Authority published final Guidelines on compliance with the regulatory disclosure requirements in the Capital Requirements Regulation. The EBA's Guidelines aim to ensure harmonized implementation of the Basel III Pillar 3 requirements that were released in January 2015. The Guidelines introduce specific guidance and formats for Pillar 3 disclosures, including tables and templates. The Guidelines will apply to Globally and Other Systemically Important Institutions. However, national regulators are able to require other firms to apply the Guidelines when complying with their Pillar 3 disclosure obligations under CRR. The Guidelines apply for year-end 2017 disclosures. However, the EBA recommends that G-SIIs implement these for year-end 2016 disclosures, and strongly encourages implementation of the guidelines for a limited subset of disclosure requirements relating to risk-weighted assets and capital requirements for the year-end 2016 disclosures.

View the final Guidelines. 

The US Federal Reserve Board and the FDIC announced that Bank of America, Bank of New York Mellon, JP Morgan Chase and State Street had adequately remedied all deficiencies in their 2015 resolution plans that caused the plans to be deemed “not credible” by the regulators. The Federal Reserve Board and the FDIC announced that Wells Fargo has not adequately remedied two of the firm’s three deficiencies and it is expected to file a revised submission addressing the deficiencies by March 31, 2017. Wells Fargo is subject to restrictions on activities until the deficiencies are remedied.

View press release.

The FDIC released a notice of proposed rulemaking that proposed amendments to its rule regarding recordkeeping requirements for qualified financial contracts (QFCs) (12 CFR Part 371). The rule currently requires an insured depository institution in troubled condition to maintain detailed recordkeeping requirements about its QFCs which would ultimately make it easier for the FDIC to transfer, disaffirm or repudiate such QFCs in the event of an FDIC receivership. The proposed rule would align Part 371 more closely with the QFC recordkeeping requirements adopted by the Secretary of the Treasury in connection with the Orderly Liquidation Authority under Title II of Dodd-Frank. The proposed rule would expand the scope of records required to be maintained under Part 371 and update the recordkeeping requirements accordingly.

View notice of proposed rulemaking.

The US Federal Deposit Insurance Corporation, Federal Reserve Board and Office of Comptroller of Currency issued interagency final rules that increase the number of small banks and savings associations eligible for an 18-month examination cycle rather than a 12-month cycle. The purpose of the rules is to reduce regulatory compliance costs for smaller institutions, while maintaining safety and soundness protections.

Under the final rules, qualifying well-capitalized and well-managed banks and savings associations with less than $1 billion in total assets are eligible for an 18-month examination cycle. Previously, only firms with less than $500 million in total assets were eligible for extended examination cycle. Qualifying well-capitalized and well-managed US branches and agencies of foreign banks with less than $1 billion in total assets are also eligible.

These rules have been in effect since February 29, 2016, pursuant to interim final rules previously adopted by the agencies. After soliciting comment on interim final rules, the agencies have re-issued them as final rules. Final rules are identical to interim final rules.

View final rules.

The US Board of Governors of the Federal Reserve System issued a statement of policy regarding how banking entities may seek an extension to conform their investments in certain illiquid hedge funds and private equity funds (covered funds) to the requirements of section 619 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, commonly known as the Volcker Rule. As noted below, any such extension requests must be submitted by January 21, 2017.

The Volcker Rule provisions of the Dodd-Frank Act permits the Federal Reserve Board, upon an application by a banking entity, to provide up to an additional five years to conform investments in certain legacy illiquid covered funds where the banking entity had a contractual commitment to invest in the fund as of May 1, 2010. The five-year extension for certain legacy illiquid covered funds is the last conformance period extension that the Federal Reserve Board is authorized to provide banking entities under the statute.

Read more.

The Federal Reserve appointed Andreas Lehnert as director of its Division of Financial Stability, effective December 25, 2016.

A Commission Implementing Regulation on the extension of the transitional periods related to own funds requirements for exposures to central counterparties set out in the Capital Requirements Regulation and European Markets Infrastructure Regulation was published in the Official Journal of the European Union. The authorization process for existing CCPs established in the European Union is complete but there are still third-country CCPs, notably some based in the US, that are awaiting recognition status. Without an extension of the transitional periods, banks and investment firms in the EU would need to increase their own funds requirements for their exposures to those CCPs that are not yet recognized. The implementing Regulation extends the transitional period by an additional six months to June 15, 2017. 

The recent proposals to amend the CRR published by the European Commission include an amendment to these transitional provisions. The proposed amendment would remove the need for the European Commission to continuously extend the transitional period by basing the transitional deadline instead on the timing of an application for recognition by a third country CCP. 

View the Implementing Regulation.

View more about the proposed amendments to CRR. 

The US Federal Reserve Board invited comment on a proposal to fully apply the Federal Reserve Board’s existing rating system for bank holding companies to savings and loan holding companies.

The Dodd-Frank Act transferred responsibility for the regulation and supervision of savings and loan holding companies to the Federal Reserve Board, effective July 2011. Since then, the Federal Reserve Board has applied its rating system to savings and loan holding companies on an “indicative” basis that describes how the savings and loan holding company would be rated. However, the assignment of an unsatisfactory indicative rating has not automatically triggered supervisory action.

The Federal Reserve Board’s rating system is in part used to determine the safety and soundness of a financial institution, as well as potential supervisory responses. Fully applying the rating system to both bank holding companies and savings and loan holding companies will help ensure consistent standards and supervision.

The proposal would fully apply the rating system to most savings and loan holding companies supervised by the Federal Reserve Board. However, it would not apply to savings and loan holding companies engaged in significant insurance or commercial activities. These firms would instead continue to receive indicative ratings.

Comments on the proposed rule must be received no later than February 13, 2017.

View proposed rule.
 

The US Federal Reserve announced the approval of technical amendments to its rule regarding risk-based capital surcharges for US-based global systemically important bank holding companies (GSIB surcharge rule), requiring those firms to hold additional amounts of risk-based capital to avoid restrictions on capital distributions and discretionary bonus payments. The changes would not materially alter the underlying rule approved by the Federal Reserve Board in July 2015.

Read more.

The Council of the European Union announced the conclusion of a provisional agreement with representatives of the European Parliament on new rules on prospectuses for the issuing and offering of securities. The draft Prospectus Regulation is part of the EU's Capital Markets Union plan. The proposed Prospectus Regulation will replace the current EU Prospectus Directive, revising the regime for companies to raise money on public markets or by public offer to potential investors. The aim is to simplify the rules and administrative obligations for companies wishing to issue shares or debt on the market and reducing the costs of preparing a prospectus, thus fostering cross-border investments in the single market, while at the same time still enabling investors to make informed investment decisions.

View the Council's press release.

You may like to view our client note on the European Commission's proposal for a Prospectus Regulation.

The European Commission published a report on benchmarking of diversity practices under the Capital Requirements Directive. The CRD requires banks and investment firms to ensure that the composition of management bodies is sufficiently diverse in terms of age, gender, geographical provenance, education and professional background. Firms are required to put in place a policy promoting management body diversity and to publish the report, the firm's objectives, relevant targets (if any) and the extent to which these have been met. The Commission is required to report to the European Parliament and the Council of the European Union on the results achieved as a result of the requirements of CRD and on the appropriateness of benchmarking diversity practices. The Commission found that improvements could still be made, both for having a policy in place and achieving greater diversity and highlighted the need for firms and supervisors to take steps to ensure that the policies are put in place. In addition, the Commission concluded that the benchmarking of diversity practices is a useful tool for assessing the impact and effectiveness of the CRD requirements over time and to monitor for compliance. The Commission does not consider that any legislative amendments are required at this time. 

View the report.

The Fixed Income, Currency and Commodities Markets Standard Board published guidelines on surveillance and training in wholesale markets. The guidance is outlined in the FMSB's Statement of Good Practice for Surveillance in Foreign Exchange Markets and Statement of Good Practice for Conduct Training. The Statement of Good Practice for Surveillance highlights the FMSB's Core Principles that firms should consider in advance of designing and implementing their surveillance measures in the foreign exchange markets, such as ensuring that: (i) the surveillance function is independent of front office; (ii) there are effective governance controls; and (iii) there is a regular review of surveillance systems to ensure that they are fit for purpose given the element of constant change in risk. It also identifies emerging practices to combat the risk of insider dealing and market manipulation, including the use of automated voice surveillance systems using techniques such as Natural Language Processing.

Read more.

The US Securities and Exchange Commission announced that Enforcement Director Andrew J. Ceresney will leave the agency by the end of the year. Upon Mr. Ceresney’s departure, Stephanie Avakian, Deputy Director of the SEC’s Enforcement Division, will become the Acting Director.

View SEC press release.

The US Federal Reserve Board published a notice in the Federal Register that it has finalized its proposed revisions to Form FR Y-7Q implementing the home country capital adequacy requirements prescribed in Sections 252.143(b) and 252.154(b) of Regulation YY. These revisions are effective December 31, 2016, except for the three new line items regarding a foreign banking organization’s (FBO) leverage ratio, which are effective March 31, 2018.

The Federal Reserve Board noted that the submission of the information required on Form FR Y-7Q constitutes compliance with both the home country capital adequacy reporting and the certification requirements of Regulation YY. Accordingly, commencing with the FR Y-7Q filings as of December 31, 2016, the Federal Reserve Board will treat each quarterly filing as a certification of the reporting FBO’s home country capital adequacy. The Federal Reserve Board also eliminated the proposed line items for Pillar II buffers and any “other” applicable capital buffer. However, it retained the line item for reporting home country GSIB buffers. Regarding confidentiality, the Federal Reserve Board considers all the required information to be publicly available, but will consider, on a case-by-case basis, requests by individual FBOs for confidential treatment of specific line items.

View the Federal Register notice.

The European Banking Authority launched a consultation on draft Guidelines on major incidents reporting under the Payment Services Directive 2. PSD2 requires payment service providers to notify their national regulator without delay of any major operational or security incident. The national regulator must assess the relevance of the incident to other authorities in its Member State and notify them accordingly. In addition, the national regulator must pass on the details of the incident to the EBA and the European Central Bank and, with them, assess the relevance of the incident to other EU bodies and Member States and notify them accordingly. 

The EBA is responsible for preparing Guidelines addresses to PSPs on the classification of major incidents and on the content, the format, including standard notification templates and the procedures for notifying an incident to their regulator. In addition, the EBA must prepare Guidelines for national regulators on the criteria for assessing the relevance of an incident and the details of the incident report to be shared with other authorities. Both Guidelines must be developed in close cooperation with the ECB. The EBA's consultation paper sets out the proposed Guidelines as developed by the EBA with the ECB. Responses to the consultation are requested by March 7, 2017. 

View the consultation paper.

The Payment Systems Regulator published proposals for remedying the lack of competition in the provision of UK payments central infrastructure for Bacs, FPS and LINK which means that the incumbent provider, VocaLink, faces limited competitive pressure and minimal incentives to provide more efficient and innovative services. 
The PSR published its final report on its market review into the ownership and payment infrastructure competitiveness in the UK on July 28, 2016. The final report identified the competition issues and outlined potential remedies, including undertaking competitive procurement exercises, such as issuing guidance and requiring operators of payment service providers to follow a prescribed set of processes and implementing enhanced interoperability, including a common international messaging standard, for Bacs and FPS, and divestment by the four largest shareholders in VocaLink. Following feedback to those initial proposals, the PSR is now consulting on mandating competitive procurement exercises for Bacs, FPS and LINK when the operators of these systems purchase central infrastructure services and introducing the ISO 20022 messaging standard in future procurements for Bacs and FPS. 

Read more.

The SEC announced that Keith F. Higgins, Director of the SEC’s Division of Corporation Finance, plans to leave the SEC in early January. Upon Mr. Higgins’s departure, Shelley Parratt, Deputy Director for the Division of Corporation Finance, will become the acting Director. Ms. Parratt has served previously as acting Director.

View SEC’s press release.

The Financial Conduct Authority published a consultation paper setting out its proposals to enhance the conduct of business rules for firms providing contract for difference products to retail clients and to limit the risks of CfDs for retail clients. The FCA is proposing to change its current rules because of increasing evidence of poor conduct by relevant firms and risks posed to retail customers. Amongst other things, the FCA is proposing to require all CfD firms to provide a standardized risk warning and mandatory profit-loss disclosures, to impose lower leverage limits for inexperienced retail clients (i.e. those with less than 12 months of active trading experience) and higher leverage limits for experienced retail clients, and to prohibit bonus and account opening promotions for their retail CfD products and platforms. 

The FCA also sets out its policy proposals for the regulation of binary bets. Binary bets are expected to be brought within the UK regulatory perimeter as part of the UK implementation of the revised Markets in Financial Instruments Directive. The FCA is considering its policy approach for the protection of retail clients in relation to binary bets and is seeking feedback on its approach before it consults on formal proposals. 

The consultation closes on March 7, 2017. The FCA expects to publish a Policy Statement and final rules in Q2 2017, with the expectation that the rules will come into force shortly afterwards. 

View the consultation paper. 

The Prudential Regulation Authority published a Statement of Policy setting out its approach to the implementation of the systemic risk buffer. The SRB is used to prevent and mitigate long term non-cyclical macro-prudential or systemic risks not covered by the Capital Requirements Regulation. It is a firm-specific buffer based on a firm's risk weighted exposures and must be met with Common Equity Tier 1 capital. The Statement of Policy is relevant to ring-fenced bodies under the Financial Services and Markets Act 2000 and large building societies that hold more than £25 billion in deposits. These are jointly referred to as "SRB institutions". The UK Independent Commission on Banking recommended that the UK's systemically important SRB institutions be held to a higher capital standard. In addition to these recommendations, the UK legislation implementing the systemic risk buffer requires that the PRA apply the Financial Policy Committee framework as of January 1, 2019. The FPC's framework for the systemic risk buffer was published in May 2016.

Read more.

The Commodity Futures Trading Commission voted unanimously to repropose regulations implementing limits on speculative futures and swaps positions as called for in the Dodd-Frank Act. In a separate vote, the CFTC approved final aggregation regulations, which are a key component of the CFTC’s existing position limits regime. The reproposal will be open for public comment for 60 days after publication in the Federal Register.

Read more.

Federal Reserve Board Governor Tarullo gave a speech defending post-financial crisis efforts to strengthen regulation governing the financial system. Governor Tarullo also criticized recent Republican legislative regulatory reform proposals, including the Financial CHOICE Act’s proposal to raise the leverage ratio of banks to 10% in return for relief from many other prudential requirements, including risk-based capital requirements.

View Governor Tarullo’s remarks.

The Comptroller of the Currency, Thomas Curry, announced that the OCC would commence considering applications from financial technology companies that offer bank products and services for a grant of a special purpose bank charter. The ability to obtain a bank charter would eliminate the need for Fintech companies to register in multiple states, each with different laws and restrictions. Although the details of the charter are not final, the OCC released a paper discussing the issues and conditions that will be considered in granting special purpose bank charters. That paper indicates that such institutions would not be required to take FDIC-insured deposits. In a related Fintech development, Federal Reserve Board Governor Brainard gave a speech at a Federal Reserve Board conference on emerging financial technologies. She addressed various developments and the need to address related risks, and she noted the Federal Reserve Board’s earlier establishment of a working group on fintech innovation.

View the OCC press release.

View the OCC paper.

View Governor Brainard’s speech.
 

The CFTC issued a proposed rule establishing minimum capital requirements for Swap Dealers and Major Swap Participants. As required by section 731 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, the rules mandate minimum levels of qualifying capital for certain Swap Dealers and Major Swap Participants that are not subject to the capital rules of a prudential regulator. Under the proposed rule, the calculation of capital may be performed using the alternative approaches method, which are based on existing US bank regulators’ capital requirements or the CFTC’s future commission merchant and the SEC’s broker-dealer net liquid asset capital requirements. In addition, Swap Dealers that predominantly engage in non-financial activities and Major Swap Participants can elect minimum capital requirements based on the tangible net worth of the entities or can use internal models to compute their regulatory capital, subject to CFTC or National Futures Association approval. The proposal also requires some Swap Dealers and Major Swap Participants to satisfy certain liquidity requirements as well as reporting, record-keeping and notification requirements. In a statement issued concurrently with the proposal, CFTC Chairman Timothy Massad expressed support for the rule, stating that the revised rule recognizes the diversity of business models amongst swap dealers. Comments on the proposal are due 90 days following the publication of the proposed rule in the Federal Register.

Read more.

The G20 Leaders published the Priorities for the 2017 G20 Summit in Hamburg on July 7 and 8, 2017. The document sets out the areas in which the G20 will build on previous work and further areas. The priorities include improving global financial resilience with a focus on cross-border capital flows, continuing work on monitoring and regulating market-based finance (including shadow banking activities) and progressing the global and comprehensive implementation of the recommendations of the Financial Action Task Force on combating terrorist financing and money laundering, including a review of the FATF's structure and governance.

View the document setting out the G20 priorities for 2017.

The US House of Representatives passed a bill (H.R. 6392) that would replace the current supervisory framework under the Dodd-Frank Act that automatically subjects all bank holding companies with $50 billion or more in total consolidated assets to enhanced prudential standards with a system that would authorize the Financial Stability Oversight Council to designate companies on a case-by-case basis if the FSOC makes a final determination that material financial distress at the bank holding company, or the nature, scope, size, scale, concentration, interconnectedness or mix of its activities could threaten the financial stability of the United States. G-SIBs, however, would be treated as if such a determination had been made. In a statement issued in support of the bill, Representative Warren Davidson (R-OH) stated that the bill “prevent[s] the Fed and Treasury from Blindly implementing new regulations proposed by an international entity, whether coming from the [BCBS] or unelected bureaucrats on the Financial Stability Board.” By contrast, Representative Maxine Waters (D-CA) called the legislation the “first step in the Trump agenda to deregulate Wall St.”

View text of HR 6392.

The Office of Financial Sanctions Implementation (OFSI), which is a part of HM Treasury, published the UK Government's proposed approach to imposing financial penalties for breach of financial sanctions. OFSI was established earlier in 2016 and has responsibility for ensuring that sanctions are "properly understood, implemented and enforced in the UK". Financial sanctions may include prohibitions on the transfer of funds to a sanctioned country, freezing of the assets of a government, corporate entities or citizens of a particular country or targeted freezing of assets of individuals or legal entities. Provisions in the Policing and Crime Bill, currently going through Parliament, outline new administrative penalties, civil monetary penalties and an increase in the maximum custodial sentence for breaching financial sanctions to seven years on conviction on indictment (or six months' imprisonment on summary conviction) for breach of financial sanctions. OFSI is seeking feedback on its proposed Guidance on the circumstances in which it may consider that a monetary penalty is suitable and how it will set the penalty amount as well as the process for imposing a penalty and the circumstances in which details of any penalty may be published. The consultation closes on January 26, 2017. OFSI has stated that either interim or final Guidance will be published before the power to impose penalties comes into effect in April 2017. The proposed Guidance is based on the current version of the Bill and may need to be amended as appropriate once the final legislation is published.

View the consultation paper. 

The Commission adopted Regulatory Technical Standards supplementing the revised Markets in Financial Instruments Directive, setting out when an activity is “ancillary” to a firm’s main business. MiFID II provides an exemption from the requirement for authorization as an investment firm when dealing on own account, or providing investment services to clients in commodity derivatives, emission allowances or derivatives thereof, provided that the activity is an ancillary activity to their main business on a group basis and the main business is not the provision of investment services within the meaning of MiFID II or banking activities under the Capital Requirements Directive. Adoption of the RTS follows the consultation by the European Securities and Markets Authority on the draft RTS. The Commission proposed changes to ESMA's final draft RTS, which was submitted on September 28, 2015, including a capital test to distinguish a group’s main activates from its ancillary activities. The Commission requested a methodology to specify the allocation of capital between the main business activity and the ancillary activity to enable groups to demonstrate, based on the capital employed, where the group’s main business activity resides. On May 30, 2016, ESMA responded by way of formal opinion and revised draft RTS. Rather than a single capital based methodology, ESMA proposed five options for speculative trading and three for a group’s main activity. ESMA did not stipulate which of the options was to be preferred and did not specify a threshold for determining the percentage of speculative trading by a group‘s main activity that would trigger the requirement for authorization under MiFID II. 

Read more.

In early December 2016, the US Federal Reserve Board’s Divisions of Research & Statistics and Monetary Affairs released a discussion paper entitled “Distributed Ledger Technology in Payments, Clearing, and Settlement.”

The paper notes how digital innovations in finance, loosely known as Fintech, have garnered a great deal of attention across the financial industry. Distributed ledger technology (DLT) is one such innovation that has been cited as a means of transforming payment, clearing and settlement processes, including how funds are transferred and how securities, commodities and derivatives are cleared and settled. The paper examines how this technology might be used in the area of payments, clearing and settlement and to identify both the opportunities and challenges facing its practical implementation and possible long-term adoption. The authors state that DLT has the potential to provide new ways to transfer and record the ownership of digital assets; securely store information; provide for identity management; and other evolving operations through peer-to-peer networking, access to a distributed but common ledger among participants and cryptography. Potential use cases in payments, clearing and settlement include cross-border payments and the post-trade clearing and settlement of securities transactions. These use cases could address operational and financial frictions around existing services.

Read more.

The European Securities and Markets Authority announced the launch of a new database, the European Rating Platform. The ERP provides access to free, up-to-date information on credit ratings that have been issued by a credit rating agency that is registered or certified by ESMA, except for those issued under the investor-pays model. The ERP enables investors and other users of ratings to compare all credit ratings that exist for a specific rated entity or instrument. It holds rating history details from July 1, 2015 onwards, press releases accompanying the rating issuances and research reports for sovereign ratings.

View ESMA's announcement.

Go to the new ERP.

Thomas Curry, Comptroller of the Currency provided remarks at The Clearing House’s Annual Conference, focusing on value of strong capital, the need for liquidity, and importance of effective supervision.

Curry began by highlighting that increased capital requirements, and leverage ratio requirements that supplement these capital standards, have led to large bank holding companies being projected to remain well-capitalized under most severe stress test scenario. He argued against reduction in capital and leverage requirements. He similarly emphasized the importance of strong liquidity requirements that were implemented since the financial crisis and noted that US banks have higher revenues and higher profits than their European counterparts under the new regulations.

Curry discussed the importance of “holistic” supervision, arguing that regulators and banks must continue to improve both metrics and “soft” standards of performance. Curry mentioned a trend in some banks to separate Chairmanship of the Board from the CEO position and noted that the OCC is considering whether it would make sense for all, or all of the largest, federally supervised banks to make the same change. Curry concluded by highlighting the performance of community banks and smaller institutions alongside large institutions and noting the progress made since 2008.

View  Comptroller Curry's remarks.

The Bank of England published its latest Financial Stability report. In the Report, the Financial Policy Committee explains the key risks affecting the UK financial system, how it is addressing these risks and the developments since the Brexit referendum. The Report also includes a summary of the results of the Bank of England's 2016 bank stress test.

The first part of the Report outlines in detail the Committee’s analysis of major risks posed to the stability of the UK economy and the action it is taking in light of such risks. The second part of the Report contains a summary of the Committee’s analysis of those risks and of the resilience of the financial system. The Committee comments that since the Referendum, financial stability in the UK has been maintained despite a challenging period of uncertainty around the domestic and global economic outlook. For example, there have been significant movements in asset prices, including a 12% fall in the sterling exchange rate index. The Committee also comments that the outlook for financial stability in the UK remains challenging as the economy has entered into a period of adjustment. Since July, vulnerabilities that stem from the global economic environment and financial markets have further increased, such as the expected expansionary fiscal policy that could follow the recent US election. The Committee comments that the UK banking system is capitalized to sustain the provision of financial services when faced with severe stresses. Since the global financial crisis, UK banks have built up capital resources with the aggregate common equity Tier 1 capital held by major UK banks now at 13.5% of risk-weighted assets (as at September 2016).  

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Antonio Weiss, Counselor to the US Treasury Secretary, argued that the FSOC has become a “critical nerve center during episodes of market volatility or stress,” providing a forum to assess system-wide risks, which was missing during the financial crisis. In the speech, Weiss stated that the establishment of FSOC has improved the ability of regulators to share information and collaborate in a way that no single regulator can do on its own.

View text of Weiss’s remarks.
 

The Financial Conduct Authority launched a call for input into its review of high-cost credit, including the high-cost of short-term credit (HCSTC) price caps. The FCA took over regulation of consumer credit in April 2014. High-cost credit includes payday loans, home-collected credit, catalogue credit, some rent-to-own, pawn-broking, guarantor and logbook loans. As part of its policy to address the risk of consumer harm from such products, the FCA has introduced a HCSTC cap and new regulation for HCSTC lenders. The FCA has committed to reviewing the HCSTC price cap while also reviewing high-cost products as a whole to determine whether further policy intervention is required and if so, whether a more consistent approach is necessary. The FCA identifies overdrafts as a priority area for consumer protection and regulation. The FCA is seeking responses on issues with regard to the competition and provision of substitute or alternative high-cost credit products to overdrafts. The HCSTC price cap came into force on January 2, 2015. The FCA is seeking to assess whether there is evidence to suggest that it should consider changing the price cap.  

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The US Consumer Financial Protection Bureau issued a bulletin warning banks that creating incentives for employees and service providers to meet sales and other business goals can lead to illegal sales practices such as unauthorized account openings, deceptive sales tactics and steering consumers into less favorable products, all practices which may cause consumer harm. In addition, the bulletin outlines the CFPB’s expectation that institutions that choose to utilize incentives should institute effective controls for the risks that these incentives may present. Most importantly, the CFPB emphasizes the need for a robust compliance management system, which includes board of director and management oversight, training, monitoring and independent audits.

View CFPB bulletin.

The European Commission published a legislative proposal for a Regulation on the recovery and resolution of CCPs. The aim of the proposed Regulation is to set up a framework for the orderly recovery of a CCP through implementation of recovery plans. Under the proposal, a CCP's recovery plan will need to be agreed between the CCP and its clearing members. If the recovery measures do not restore the CCP’s viability, the CCP's resolution authority will have the power to take action to ensure the continuity of the CCP's critical functions and, if needed, resolve the CCP.  This includes setting up bridge CCPs. In the event of losses arising under a resolution, these will be borne by a CCP's owners, creditors and counterparties in line with the hierarchy of claims in insolvency.  Managers of a CCP will be capable of being replaced and held accountable for wrongdoing under the applicable national laws. The CCP recovery and resolution framework would apply to all CCPs established in the EU. It is not proposed that the recovery and resolution framework would apply to the wider group of a CCP, but a resolution authority would be able to decide on a case-by-case basis whether a recovery plan should include a parent company.

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The CFTC extended the relief granted under No-Action Letters 15-62 and 15-63 until December 31, 2017. The extended no-action relief in CFTC Letter No. 16-80 exempts inter-affiliate swaps from the trade execution requirement under section 2(h)(8) of the Commodity Exchange Act, subject to certain requirements. In addition, CFTC Letter No. 16-81 extends temporary relief from the trade execution requirement to certain affiliate counterparties.

View text of CFTC Letter No. 16-80.

View text of CFTC Letter No. 16-81.

The Financial Conduct Authority published a consultation paper on proposed changes to its Disclosure Guidance and Transparency Rules sourcebook in the Handbook on delaying the disclosure of inside information. The Market Abuse Regulation requires issuers to inform the public as soon as possible of inside information which directly concerns them. MAR mandates the European Securities and Markets Authority to prepare Guidelines which further specify when an issuer might delay disclosure of inside information. ESMA's Guidelines, published on November 20, 2016, outline the legitimate interests of issuers to delay disclosure of inside information and provide a non-exhaustive indicative list on the legitimate interests of the issuer that are likely to be prejudiced by the immediate disclosure of inside information and the situations in which delay of disclosure is likely to mislead the public. ESMA's Guidelines will apply directly across the EU from January 10, 2017. The FCA has confirmed that it intends to comply with ESMA's Guidelines and is consulting on the consequential changes to its rules. The consultation closes on January 6, 2017. 

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The Prudential Regulation Authority launched its second consultation on implementing certain aspects of the Markets in Financial Instruments legislative package, which comprises the Markets in Financial Instruments Directive and the Markets in Financial Instruments Regulation, collectively known as MiFID II. The consultation relates to requirements for a firm's management body and organizational requirements as well as to the new regulated activity of operating an Organised Trading Facility and the new financial instrument of "emission allowances" and structured products. The PRA consulted on its approach to passporting and algorithmic trading earlier in 2016 and has published its final rules for those areas. The PRA will consult on other aspects related to MiFID II in due course.

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