The US Consumer Financial Protection Bureau outlined proposals under consideration that would overhaul the debt collection market by capping collector contact attempts and by helping to ensure that companies collect the correct debt. Pursuant to the proposals being considered, debt collectors would be required to have more and better information about the debt before they collect. As they are collecting, debt collection companies would be required to limit communications, clearly disclose debt details and make it easier to dispute the debt. When responding to disputes, collectors would be prohibited from continuing to pursue debt without sufficient evidence. These requirements and restrictions would follow the debt if it were sold or transferred.

View outline of proposals under consideration.

The European Commission published regulatory technical standards on margin for uncleared swaps and a letter to the European Supervisory Authorities notifying them of the Commission's intention to endorse (with amendments) the draft RTS submitted by the ESAs in March 2016. 

The CFTC announced the signing of counterparts with certain Canadian authorities to a Memorandum of Understanding (MOU), originally executed on March 25, 2014, regarding cooperation and the exchange of information in the supervision and oversight of regulated entities that operate on a cross-border basis in the United States and in Canada. The scope of the MOU includes markets and organized trading platforms, central counterparties, trade repositories and intermediaries, dealers and other market participants.

View CFTC press release and counterparts to MOU.

The European Commission adopted a Commission Delegated Regulation in the form of Regulatory Technical Standards supplementing the Markets in Financial Instruments Regulation. MiFIR will, from January 3, 2018, require an investment firm to report complete and accurate details of transactions in financial instruments no later than the close of the following business day to its national regulator. One of the purposes of the reporting obligation is for national regulators to undertake market surveillance, including to monitor for market abuse.

Read more.

The Payment Systems Regulator published its final report on its market review into the ownership and payment infrastructure competitiveness in the UK. The final report follows the PSR’s interim report which was published in February 2016. The PSR has concluded that there is currently no effective competition in the provision of UK payments central infrastructure services for Bacs, FPS and LINK (notwithstanding general satisfaction by operators and PSPs in terms of value for money, quality of service and innovation received from providers). This is partly because the operators have not periodically run competitive procurement processes or sufficiently tested the market when reproducing core infrastructure services. This means that the incumbent provider, VocaLink, has faced limited competitive pressure and minimal incentives to provide more efficient and innovative services. 

the CFTC announced that it is seeking comment on proposed amendments to CFTC Regulation 3.10(c) to modify an exemption from registration for certain foreign persons in connection with commodity interest transactions solely on behalf of persons located outside the US, or on behalf of certain international financial institutions. The amendments would codify certain existing no-action relief. Comments were due by September 6, 2016.

View CFTC proposal.

The European Banking Authority published final draft Regulatory Technical Standards on the criteria for the application of preferential treatment in cross-border intragroup credit or liquidity lines, or within an institutional protection scheme. The Capital Requirements Regulation permits regulators to grant preferential treatment for transactions within a group or an institutional protection scheme by applying higher inflow rates (in the case of the liquidity receiver) or lower outflow rates (in the case of the liquidity provider) for calculating  the liquidity coverage requirement for intra-group liquidity flows. Where transactions within a group or an institutional protection scheme constitute cross-border positions, preferential treatment is conditional upon compliance with additional objective criteria specified in the Liquidity Coverage Ratio Delegated Act. The Capital Requirements Regulation mandates the EBA to develop draft RTS to specify additional objective criteria. 

Read more.

A Commission Implementing Regulation on Implementing Technical Standards on the standard procedures and forms for national regulators to submit information on penalties imposed under the Undertakings for Collective Investment in Transferable Securities Directive was published in the Official Journal of the European Union. The UCITS Directive requires member states to implement laws imposing administrative sanctions and other administrative measures on individuals and companies that infringe the requirements of the Directive. 

The ITS set out the common procedures and forms for national regulators to report annually to the European Securities and Markets Authority those administrative penalties and measures that they have imposed in accordance with the UCITS Directive in the previous calendar year. The ITS applied from August 15, 2016.

View the ITS.

The European Banking Authority published draft Guidelines on bank’s credit risk management practices and accounting for expected losses. IFRS 9 Financial Instruments will replace IAS 39 Financial Instruments: Recognition and Measurement for the accounting periods beginning on or after January 1, 2018. IFRS 9 requires the measurement of impairment loss allowances to be based on an expected credit loss accounting model rather than on an incurred loss accounting model. Many EU banks use the IFRS standards and because the use of an ECL accounting model involves some discretion in it application, the EBA is proposing that bank’s use the Guidelines when implementing and applying IFRS 9. The proposed Guidelines should be read in conjunction with the relevant provisions of the CRR and CRD. The consultation closes on October 26, 2016. The EBA intends to finalize the Guidelines in Q4 2016 or Q1 2017. The finalized Guidelines will need to be implemented by January 1, 2018. 

View the consultation paper.

The European Banking Authority published its final report on guidelines for communication between regulators supervising credit institutions and statutory auditors and audit firms carrying out the statutory audit of credit institutions.  The Audit Regulation requires that effective dialogue must be established between regulators supervising credit institutions on the one hand and the statutory auditors and audit firms carrying out the audit of those firms on the other. The EBA’s guidelines include an underlying general framework that should underpin communication between regulators and auditors at all times.  The guidelines include seven principles and detailed guidance relating to the main elements of effective communication. The seven principles address: (i) the scope and relevance of information shared; (ii) requests by regulators for information from auditors; (iii) the sharing of information with auditors by regulators; (iv) methods of communication and communication channels; (v) the identity, competence and knowledge of participants in the communication between regulators and auditors collectively; (vi) the frequency of information-sharing between regulators and auditors; and (vii) communications between regulators and auditors collectively (such as a group of auditors, or a professional body representing auditors) .

The guidelines will be transposed into the official languages of the EU and will apply from March 31, 2017.

View the Final Report.

The OFR published a working paper that examines whether new rules imposed on bilateral trading incentivize central clearing of derivatives. By comparing the total capital and collateral costs when banks transact bilaterally to the capital and collateral costs when they clear through CCPs, the study finds that central clearing is sometimes more expensive. While “the cost comparison does not necessarily favor central clearing, . . . when it does, the incentive may be driven by questionable differences in CCPs’ default waterfall resources.” In the absence of a cost advantage for central clearing, market participants may be motivated to customize contracts in order to trade them bilaterally. The authors find that without a cost advantage, banks may also be less inclined to move legacy trades to CCPs.

View OFR working paper.

The European Securities and Markets Association published a final report on draft implementing technical standards concerning the procedures and forms for submitting information regarding administrative and criminal investigations, sanctions and other administrative measures under the Market Abuse Regulation. The technical standards relate to requirements under MAR for national member state regulators to submit two types of information to ESMA: (i) aggregated information on all administrative and criminal sanctions and other administrative measures imposed, and criminal investigations undertaken, under relevant provisions of MAR; and (ii) administrative and criminal sanctions and other administrative procedures that are disclosed to the public by regulators, which must  be simultaneously reported to ESMA.

ESMA submitted the draft technical standards to the European Commission for endorsement on July 26, 2016.

View the final report.

The European Banking Authority published a consultation paper proposing an updated version of the guidelines on the implementation of the large exposures regime that was issued by the Committee of European Banking Supervisors on December 11, 2009. The large exposures regime has since been amended by the Capital Requirements Regulation and complemented by European Commission and EBA guidelines. In light of the CRR amendments, the EBA has reviewed and updated the 2009 CEBS Guidelines and presented the results of the review in the consultation paper.

The Financial Conduct Authority published its final report outlining findings from its credit card market study. The FCA credit card market study was launched in November 2014. The purpose of the study was to analyze the credit card market and determine whether it is working in the interest of consumers and to develop remedies to improve the situation if needed. Interim findings were published in November 2015 with potential remedies mooted for certain issues such as the frequent withdrawal of firms’ promotional offers and the fees associated with a single month’s missed payment. The final report summarizes feedback received on the interim report and outlines the FCA’s package of remedies.

On July 25, 2016, the US Office of Financial Research issued its biannual update of the risks to US financial stability. The report finds that, overall, risks to US financial stability remain in the medium range but have been pushed higher by the UK vote to exit the EU. The OFR notes that, “[t]he result surprised financial markets and was a negative shock to investor confidence. It introduces months or years of uncertainty about the rules governing the UK’s investment, financing, and trade relations . . . . Because the UK economy and especially the UK financial system are highly connected with the rest of Europe and the United States, severe adverse outcomes in the UK could pose a risk to US financial stability.” The OFR report observes that the key vulnerabilities addressed in the OFR’s 2015 Financial Stability Report issued last December also persist, adding that: (i) credit risks in US nonfinancial businesses and in some major foreign markets are still elevated; (ii) long-term US interest rates have declined to ultra-low levels, which can motivate excessive risk-taking and borrowing, and many key foreign interest rates are now negative, with uncertain consequences for financial stability; and (iii) uneven resilience persists in the US financial system.

View The OFR Financial Stability Monitor.

The US Federal Reserve Board extended until September 16, 2016, the comment period for the advanced notice of proposed rulemaking detailing conceptual frameworks for capital standards that could apply to systemically important insurance companies and to insurance companies that own a bank or thrift. The Federal Reserve Board proposal presents one approach, known as the “consolidated approach,” that would apply to systemically important insurance companies and a second approach, referred to as the “building block approach,” for the supervised insurance companies that own a bank or thrift. The Federal Reserve Board extended the comment period, originally set for August 17, 2016, to allow interested persons more time to analyze the issues and prepare their comments.

View Proposed Rule.

The European Banking Authority launched a consultation on the appropriate reference point for setting the target level of resolution financing arrangements required by the Bank Recovery and Resolution Directive. The BRRD provides that when a bank fails, shareholders and creditors of the bank must be the first to bear losses. To ensure the effective implementation of the other resolution tools available, member states are required to have pre-funded resolution financing arrangements, contributions of which are made by the banks in each member state. The BRRD currently provides for contributions of at least 1% of the amount of covered deposits of all the banks in a given Member State by December 31, 2024. The BRRD requires the EBA to make recommendations to the Commission on whether the basis for those arrangements should be changed. The EBA is seeking feedback on its proposal to recommend to the Commission that the basis should be changed to one of: (i) total liabilities (excluding own funds) less covered deposits; (ii) total liabilities (excluding own funds); or (iii) total liabilities (including own funds).

Read more.

The CFTC’s Division of Swap Dealer and Intermediary Oversight issued a staff advisory regarding chief compliance officer reporting line requirements for swap dealers, major swap participants and futures commission merchants under CFTC Regulation 3.3. The advisory clarifies the regulation’s required elements and addresses additional supervisory relationships that a chief compliance officer may have with senior management in addition to those with the board or the senior officer of the registrant.

View CFTC staff advisory.

The UK Prudential Regulation Authority published a consultation paper on aspects of its policy to implement the ring-fencing requirements for banks. The consultation covers reporting, prudential and recovery and resolution requirements. The proposals are relevant to all firms that are required to ring-fence their core banking activities before the implementation date of January 1, 2019 (which are firms, broadly speaking, with at least £25 billion of core deposits) and to growing firms that expect to meet this threshold by 2019. UK banking groups that have more than £25 billion of core deposits will need to ring-fence the entity/ies that accept deposits - called ring-fenced bodies, by transferring other business lines to different legal vehicles or undertaking other business separations.

The PRA proposes to establish reporting requirements on a sub-consolidated basis when an RFB sub-group is formed, by extending all non-Capital Requirements Regulation reporting requirements that currently apply on a consolidated basis to banking groups affected by ring-fencing to an RFB sub-group and requiring RFBs to submit certain non-CRR reporting returns on a sub-consolidated basis, requiring RFBs to report on a sub-group’s intragroup exposures, related collateral and funding transactions. 

Read more.

The European Securities and Markets Authority published a list of US designated contract markets considered equivalent to a regulated market in the European Union. The list is based on a Commission Implementing Decision published in the Official Journal of the European Union on July 2, 2016, which considered that 15 DCMs located in the United States are equivalent. The DCMs have been deemed equivalent for purposes of the definition of over-the-counter derivatives in the European Markets and Infrastructure Regulation. This means that derivative contracts traded on these DCMs would not be deemed to be OTC derivatives and therefore not be subject an obligation to clear the transactions, report on them and undertake risk mitigation steps as if they were OTC, under EMIR. To be deemed equivalent, a third country market must comply with legally binding requirements in its home state equivalent to the Markets in Financial Instruments Directive and must also be subject to effective supervision and enforcement in that third country on an on-going basis. 

View the Commission Implementing Decision.  

View ESMA’s library on post trading. 

The European Banking Authority published a report on the recent dynamics, cross-country dispersion and drivers of non-performing exposures in the EU banking sector. The report covers a review of 166 EU banks from September 2014 to March 2016. The EBA notes that there is a high disparity between jurisdictions, suggesting that the average non-performing loan (NPL) ratio is up to three times higher in the EU than in other jurisdictions. The report provides an overview of asset quality across jurisdictions and analyzes the riskiness of counterparties in different countries and the structural characteristics of local markets that can affect credit quality, provisioning policies and recovery of distressed assets. 

A Decision of the European Banking Authority on unsolicited credit assessments was published in the Official Journal of the European Union. The EBA decided that unsolicited credit assessments of certain External Credit Assessment Institutions (ECAIs) did not differ from their solicited credit assessments. An ECAI is a credit rating agency that has been registered or certified under the EU CRA Regulation or a central bank issuing credit ratings which are exempt from the application of the CRA Regulation. 

Read more.

The Bank of England published a consultation paper on a proposed unified Enforcement Decision Making Committee. The EDMC would take decisions on the matters regarding: (i) firms and individuals regulated by Prudential Regulation Authority; (ii) financial market infrastructure; and (iii) the resolution of contested enforcement cases. The consultation follows a recommendation by HM Treasury to extend the proposed EDMC model across all the areas where the Bank has enforcement powers. The EDMC would be established by the Court of Directors of the Bank of England and its 15 members would be independent from the Bank’s executive management structure and would be appointed for a renewable 3 year term. The EDMC would undertake administrative processes, not judicial, and would be similar to the FCA's Regulatory Decisions Committee, with a right of appeal to a judicial body after its decisions was reached. The EDMCs remit would include all contested statutory notice decisions. The Bank seeks feedback on the creation of the EDMC including on its proposed composition, independence, jurisdiction, decision making powers and processes. 

Responses to the consultation are due by October 21, 2016. The Bank aims to publish guidance on the consultation as part of a comprehensive external policy statement on the Bank’s enforcement process during the course of 2017. 

View the consultation paper.

The Financial Conduct Authority published the findings of its thematic review of the UK equity marketplace, focusing on dark pools and broker crossing networks. The FCA examined promotional activity and the identification and management of conflicts of interest by dark pool operators, as well as issues of governance, oversight and controls. The report is based on the definition of “dark pool” as a trading venue with no pre-trade transparency, such that all orders, prices and volumes are anonymous. 

Read more.

The Payment Systems Regulator published its final report on its market review into the supply of indirect access to payment systems. Banks, building societies and other payment service providers rely on payment systems to transfer money between accounts. The PSR commented that provision of access to payment systems is essential in enabling effective supervision of and innovation in payments. Indirect access to payment systems occurs when one payment service provider relies on another payment service provider to provide access. The PSRs final conclusions remain largely unchanged from its interim report.    

The PSR concluded that generally, competition in the supply of indirect access appears to be producing some good outcomes. For example, large indirect payment service providers (IPSPs) have a number of options to access payments systems, there is a reasonable level of overall satisfaction with the quality of the indirect access offering that IPSPs receive. 

Read more.

The CFPB announced that Chris D’Angelo was appointed to serve as the CFPB’s Associate Director for Supervision, Enforcement and Fair Lending, Nellisha Ramdass was appointed to serve as the CFPB’s Deputy Chief Operating Officer and Richard Lepley was appointed to serve as the CFPB’s Principal Deputy General Counsel in the Office of the General Counsel in the CFPB’s Legal Division.

View The CFPB press release.

The OCC, Department of the Treasury, Federal Reserve Board and FDIC jointly published a notice proposing to extend, with revision, the Country Exposure Report (FFIEC 009) and the Country Exposure Information Report (FFIEC 009a). The revisions would (i) require that institutions provide their Legal Entity Identifier on both reporting forms, if applicable and (ii) add Intermediate Holding Companies to the Federal Reserve Board’s respondent panel. The agencies had previously requested comments on these changes. The proposed revisions have now been submitted to the Office of Management and Budget for approval. The changes would take effect September 30, 2016.

View notice.

The Financial Conduct Authority published a Feedback Statement on its call for input on implementation of future RegTech in the UK. The FCA defines RegTech as a sub-set of FinTech with a focus on technologies that may facilitate the delivery of regulatory requirements more efficiently and effectively than existing capabilities. The Feedback Statement summarizes industry responses to the FCA’s call for input, outlines the FCA’s approach to RegTech for 2016/17 and the activities it will prioritize.  The FCA intends to increase engagement and collaboration with the RegTech community, noting that it has restricted potential to assist the industry in defining standards and guidelines to provide certainty for firms purchasing new technology capabilities. The FCA aims to improve compliance and reduce the overall costs of regulation by encouraging innovation development and the adoption of new technologies that help and improve the interface between the regulator and regulated firms. 

View the feedback statement.

A Commission Delegated Regulation supplementing the European Market Infrastructure Regulation with regard to Regulatory Technical Standards on the clearing obligation was published in the Official Journal of the European Union. The RTS relates to classes of over the counter (OTC) derivatives that are to be subject to the clearing obligation, and specifies that the following classes will be subject to the clearing obligation under the European Markets Infrastructure Regulation: (a) fixed-to-float interest rate swap classes denominated in NOK, PLN and SEK; and (b) forward rate agreement classes denominated in NOK, PLN and SEK will be subject to the clearing obligation under EMIR. These classes will not include contracts concluded with covered bond issuers or with cover pools for covered bonds, provided that they meet certain conditions set out in the RTS. 

The US Department of the Treasury’s Financial Crimes Enforcement Network issued guidance in respect of its May 2016 final rule governing Customer Due Diligence requirements for financial institutions in the form of responses to frequently asked questions. In particular, FAQ #5 highlights amendments to AML program requirements by clarifying that the CDD rule creates a specific obligation for covered financial institutions to implement and maintain risk-based procedures for conducting ongoing customer due diligence, which procedures should include (i) understanding the nature and purpose of the customer relationship; and (ii) conducting ongoing monitoring to identify and report suspicious transactions, as well as to maintain and update customer information on a risk basis.

View FinCEN FAQs.

A new Directive on cyber security was published in the Official Journal of the European Union. The Directive aims to achieve a common level of security of network and information systems within the EU. It requires all Member States to adopt a national strategy on the security of network and information systems and establishes security and notification requirements for operators of essential services and for digital service providers. The Cyber Security Directive applies to certain credit institutions, any operator of a trading venue and central counterparties. 

Read more.

The European and Securities Markets Authority published its advice to the European Parliament, Council and Commission on the extension of the Alternative Investment Fund Managers Directive passport to non-EU Alternative Investment Fund Managers and Alternative Investment Funds in twelve non-EU countries: Australia, Bermuda, Canada, Cayman Islands, Guernsey, Hong Kong, Japan, Jersey, Isle of Man, Singapore, Switzerland, and the United States. ESMA has reviewed whether there are significant obstacles with regard to investor protection, competition, market disruption and the monitoring of systemic risk. 

Read more.

The European Commission adopted a Commission Delegated Regulation in the form of Regulatory Technical Standards specifying the organisational requirements of investment firms engaged in algorithmic trading. The adopted RTS supplement the revised Markets in Financial Instruments Directive (MiFID II) by specifying the systems, procedures, arrangements and controls to be put in place and maintained by investment firms to address the risks that may arise in financial markets due to the increased use and development of trading technology. The adopted RTS also outlines requirements of systems and controls for investment firms acting as general clearing members (those not involved with algorithmic trading). 

Read more.

The Managing Director of the International Monetary Fund, Christine Lagarde, gave a speech before the Federal Reserve Bank of New York about the struggles facing the global financial market’s smaller players in the aftermath of the financial crisis. Director Lagarde stated that due to heightened post-financial crisis regulations and anti-money laundering rules, many large global banks were prompted to reevaluate their correspondent banking models with smaller countries, and chose to reduce cross-border banking services offered to those entities considered too risky or unprofitable. In connection with those trends, Director Lagarde expressed concern that the global consequences of large banks withdrawing from vulnerable smaller countries, if left unaddressed, could become systemic and disruptive. She urged regulators to collect data and facilitate discussions with banks on this issue. Finally, Director Lagarde emphasized that “a strong and open international financial system is key to restore momentum in the global economy,” and that global banks must avoid “knee-jerk” reactions to increased regulatory costs.

View Director of Lagarde's speech.
 

Senators Tim Kaine (D-Va) (the Democratic vice-presidential nominee), Mark R. Warner (D-Va.), Gary C. Peters (D-Mich.) and Robert P. Casey (D-Pa.) wrote a letter to the heads of the US Federal Reserve Board, the FDIC and the OCC, requesting an exemption for certain large regional banks from the requirements of the liquidity coverage ratio and the advanced approaches risk-based capital rules. In their letter, the senators argue that it would be unfair for large regional banks to be subjected to the same LCR and capital rules requirements as are applied to riskier, more complex, systemically important banks.

Currently, because LCR reporting requirements are based on an asset threshold test, some large regional banks are subject to heightened LCR requirements, which requires, among other things, certain daily reporting of liquidity levels. Large regional banks may also, by virtue of size or foreign exposure, be subject to the “advanced approaches” capital requirements that dictate capital reserves a bank must hold to cover potential losses. The senators argue that regional banks should be exempted from complying with the burdens of both the LCR requirement and the Advanced Approaches requirements because they do not share the “same risk profile or complexity” as systemically important banks. The Senators also stated generally that the regulatory regime should move away from reliance on an internal models approach on the theory that such reliance obscures a bank’s financial status.

View full text of the letter.

The CFTC issued an Order extending the designation of DTCC-SWIFT as the provider of legal entity identifiers for entities under its jurisdiction, including swaps and swap counterparties, by another year. The CFTC initially designated DTCC-SWIFT as LEI provider by an Order on July 23, 2012. The CFTC has previously extended such designation. Consistent with the prior CFTC orders, registered entities and swap counterparties subject to the CFTC’s jurisdiction can continue to comply with the CFTC’s swap data recordkeeping and reporting rules by using LEIs issued by DTCC-SWIFT.

View CFTC Order.

A Decision by the European Central Bank on the disclosure of confidential information in the context of a criminal investigation was published in the Official Journal of the European Union. Pursuant to the Single Supervisory Mechanism, the ECB and/or national regulators can receive requests from national criminal investigation authorities for the disclosure of confidential information created or received in the course of their supervisory tasks and responsibilities. EU law has implications for the conditions under which confidential information held by regulators within the SSM, including the ECB, may be disclosed to national criminal investigation authorities. “Confidential information” includes information covered by data protection rules, by the obligation of professional secrecy, including those in the Capital Requirements Directive. The Decision sets out the processes and conditions under which confidential information will be provided to criminal investigation authorities.

The decision entered into force on August 5, 2016.

View the decision.

The European Central Bank published a revised version of its Eurosystem Oversight Policy Framework, which describes the role of the Eurosystem in oversight of financial market infrastructure. Eurosystem promotes the safety and protection of FMIs and acts as the central bank of issues in EU and international cooperative arrangements for securities and derivatives clearing and settlement systems. FMI includes payment systems, and clearing and settlement systems. The revised version of the current framework, which builds on the edition published in September 2015, takes into account the significant regulatory and institutional changes and market developments that have affected Eurosystem’s oversight function since July 2011. This includes the revised and enhanced harmonized international standards and EU law such as the CPSS-IOSCO Principles for Financial Market Infrastructures. 

View the oversight policy.

The European Banking Authority launched a data collection exercise to support its response to the European Commission’s Call for Advice on a new prudential framework for investment firms subject to the Markets in Financial Instruments Directive. In December 2014, the Commission sought technical advice from the EBA and the European Securities and Markets Authority on whether the current prudential framework applicable to MiFID investment firms under the Capital Requirements Directive and Capital Requirements Regulation was appropriate in terms of risk sensitivity, proportionality and complexity. In response, the EBA concluded that the regime was not appropriate for the risks that MiFID investment firms are exposed to and made recommendations. 

Read more.

Chairman of the US FDIC Martin J. Gruenberg testified before the Committee on Oversight and Government Reform of the US House of Representatives regarding de novo banks and industrial loan companies. During his testimony, he provided an overview of recent banking industry performance and condition, discussed trends in de novo bank and ILC formation, and steps the FDIC is taking to support the creation of de novo banks. Chairman Gruenberg testified that there have been few de novo banks formed in recent years, noting that since January 2011, the FDIC has received only ten applications for deposit insurance for de novo institutions and no applications for new ILCs. Of these ten applications, three were approved, five were withdrawn and two are still in process. Gruenberg noted that although community bank earnings have recovered in recent years, low interest rates and narrow net interest margins have kept bank profitability ratios (return on assets and return on equity) well below pre-crisis levels, making it relatively unattractive to start new banks. Gruenberg also noted that the FDIC is continuing to monitor developments with respect to the formation of new banking institutions, and recently announced a number of initiatives to support the efforts of viable organizing groups in creating new institutions. For example, the FDIC has begun a “Questions and Answers” series to help applicants better develop their proposals and has presented an overview of the deposit insurance application process to a conference of state bank supervisory agencies. Moreover, on April 6, 2016, the FDIC reduced the period of enhanced supervisory monitoring of newly insured depository institutions from seven years to three years.

View Chairman Gruenberg's Testimony.

The SEC proposed amendments to eliminate redundant, overlapping, outdated or superseded provisions of its rules, in light of subsequent changes to public disclosure requirements, accounting standards and technology. The amendments, along with comments received on a release seeking information to simplify and improve disclosure requirements under Regulation S-K, are designed to further inform the Commission’s actions to enhance disclosure effectiveness and efficiency. The SEC is also seeking comment on certain disclosure requirements that overlap with US Generally Accepted Accounting Principles (GAAP) to determine whether to retain them or refer them to the Financial Accounting Standards Board for incorporation into GAAP. The proposed amendments are part of a broader staff review of the disclosure requirements that issuers are required to make to investors and the requirements of the Fixing America’s Surface Transportation Act (FAST) to eliminate provisions of Regulation S-K that are duplicative, overlapping, or unnecessary. There will be a 60-day comment period.

View The SEC’s proposed amendments.

The SEC adopted a series of amendments and related guidance regarding Regulation SBSR, which governs the regulatory reporting and public dissemination of security-based swap transactions. The amendments, among other things, assign reporting duties for platform-executed security-based swaps submitted for clearing and those resulting from the clearing process, establish reporting and publication requirements for certain cross-border security-based swaps, and prohibit swap data repositories from imposing fees or usage restrictions on data that Regulation SBSR requires be made public. The goal of the amendments and guidance is to increase transparency in the security-based swap market by facilitating better public access to transaction information and expanding the scope of Regulation SBSR to cover additional transactions and entities. The amendments and guidance will be effective on October 11, 2016. The rules and guidance also establish a compliance schedule for portions of Regulation SBSR, providing that transaction reporting will not begin until after security-based swap dealers and major security-based swap participants have registered with the SEC.

View the final rule.

The European Securities and Markets Authority launched a consultation on proposals to delay the application of the clearing obligation for financial counterparties and alternative investment funds with a limited volume of derivatives activity. 

The European Market Infrastructure Regulation imposes a clearing obligation on certain classes of derivatives. ESMA has so far assessed that the clearing obligation should apply to interest rate swaps denominated in seven currencies (EUR, GBP, JPY, USD NOK, PLN and SEK) and to two classes of credit default swaps indices: iTraxx Europe Main and iTraxx Europe Crossover. The obligation to clear OTC IRS denominated in the G4 currencies (EUR, GBP, JPY and USD) applied to entities that are clearing members of EU CCPs from June 21, 2016. 
 

US Federal Reserve Board Governor Daniel Tarullo discussed the risks of shadow banking activities at the Center for American Progress and Americans for Financial Reform Conference. He focused his remarks on the characteristics of shadow banking-related financial activities and institutions that are most likely to pose risks to financial stability, namely the risk of “runnable liabilities,” defined as short-term, “pay-on-demand” transactions that are not insured by the federal government. These transactions are thought to pose a severe risk to financial stability since their pay-on-demand feature implies that, in the event of stress caused by credit-risk concerns, wide swings in short-term interest rates, or deteriorations in market liquidity, investors may behave as they would during times of stress and redeem shares, unwind transactions or decide not to roll over positions. Tarullo stated that this type of runnable funding, while less prevalent than before the financial crisis, is a key area for prudential regulators to focus analysis and policy initiatives. He stressed that while liquidity standards, stress testing and resolution planning exist to help curb the risk of runnable funding for prudentially regulated firms, liquidity runs that could threaten financial stability may exist in the non-regulated sector. Governor Tarullo suggested a number of key issues to be considered in creating a regulatory framework for these transactions, including whether one versus multiple agencies should regulate the industry and whether or not regulation should be uniform or should be tailored to take into account the characteristics of the market actors and business models involved in the funding relationship.

View Governor Tarullo’s speech on shadow banking.

The European Central Bank published its Guide on the approach for the recognition of institution protection schemes for prudential purposes.  The Capital Requirements Regulation defines an IPS as a contractual or statutory liability arrangement which protects its member institutions and ensures that they have the liquidity and solvency needed to avoid, where necessary, bankruptcy. Certain waivers or derogations of capital requirements are available for IPS member institutions under CRR.  In particular, CRR provides that the ECB may, subject to certain exceptions, allow credit institutions to apply a 0% risk weight to exposures to other counterparties which are members of the same IPS with the exception of exposures giving rise to Common Equity Tier 1, Additional Tier 1 and Tier 2 items. The ECB directly supervises the largest Eurozone banks for prudential purposes and overseas the prudential supervision by national regulators of the smaller Eurozone banks. The ECB's Guide sets out how it intends to assess compliance of an IPS and its members with the requirements set out in the CRR to grant such a waiver. 

View the Guide.

View the feedback statement. 

The OCC released its Spring 2016 Semiannual Risk Perspective, reflecting bank financial data as of December 31, 2015. The report identifies credit, strategic, operational and compliance risks as top concerns from a safety-and-soundness perspective. Specifically, strategic risk remains high as banks struggle to execute their strategic plans and faces challenges in growing revenue, and credit risks have increased as banks search for yield in an environment of strong loan growth and easier underwriting standards. With respect to operational risk, greater cyber security threats and increased reliance on third-party service providers have caused operational risk to remain high. Further, as banks struggle to comply with new rules, such as the integrated mortgage disclosure requirements, and the mandates of the Bank Secrecy Act, compliance risk management also continues to pose challenges. Risk issues identified in the Spring 2016 report are largely consistent with those identified in the Fall 2015 Report.

View The OCC Semiannual Risk Perspective for Spring 2016.

The House of Representatives passed three bills aimed at combatting terrorist financing.

H.R. 5594, the “National Strategy for Combatting Terrorist, Underground, and Other Illicit Financing Act,” would require the President, acting through the Treasury Secretary, to develop and submit to Congress annually a national strategy to combat money laundering and terrorist financing and related report. The bill requires the Treasury Secretary to consult with various heads of state and the Federal banking agencies to develop and integrate this terrorist financing strategy into the broader counter-terrorism strategy of the US.

Read more.

The Basel Committee on Banking Supervision published an amended Securitization Framework to include alternative regulatory capital treatment for simple, transparent and comparable (STC) securitisations. The Securitization Framework, which was initially published on December 11, 2014, forms part of Basel III. The amendments to the Securitization Framework provide for lower capital charges to apply to STC Securitizations, and include criteria that should be applied to differentiate STC securitizations from other securitizations. The new capital treatment for STC securitizations should be read in conjunction with the criteria for identifying STC securitizations (published by the Basel Committee and the International Organization of Securities Commissions in July 2015).  The Securitization Framework, as amended, is due to come into effect in January 2018.

View the updated Securitization Framework.

The Financial Conduct Authority launched a call for input into its review of the implementation of its crowdfunding rules. The FCA implemented rules regulating FCA-authorized firms operating crowdfunding services on April 1, 2014 and committed to reviewing these rules in 2016. The FCA is seeking views on changes in the market since the rules were implemented, emerging risks for consumers, and areas where the FCA might consider adapting its rules. 

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The Prudential Regulation Authority published a Policy Statement on operational continuity in resolution. The Appendices to the Policy Statement set out a final Supervisory Statement and the PRA Rulebook: CRR Firms: Operational Continuity Instrument 2016. 

The Policy Statement provides feedback to responses to the PRA consultation on this topic in December 2015. Based on responses received, the PRA concluded that no significant changes were required to its proposals. The Supervisory Statement sets out its expectations of firms to ensure operational continuity of critical services to facilitate recovery actions, orderly resolution and post-resolution restructuring. Compared to the draft Supervisory Statement, the PRA has amended the financial resilience expectations by removing the capital expectation and stating that the Bank of England will consider whether a loss absorbing capacity should be allocated within groups to ensure operational continuity as part of the minimum requirement for own funds and eligible liabilities (MREL) regime. 

The Operational Continuity Instrument 2016 sets out the final text of the new Operational Continuity Part of the PRA Rulebook and will come into effect on January 1, 2019.

View the Policy Statement.

View the Supervisory Statement.

View the Operational Continuity Instrument 2016.