Restoring American Financial Stability Act of 2010
Encyclopedia
The Dodd–Frank Wall Street Reform and Consumer Protection Act is a federal statute in the United States
that was signed into law by President
Barack Obama
on July 21, 2010. The Act implements financial regulatory reform
sponsored by the Democratically
controlled 111th United States Congress
and the Obama administration.
Passed as a response to the late-2000s recession, the Act was touted as the most sweeping change to financial regulation
in the United States since the Great Depression
, purportedly representing a significant change in the American financial regulatory environment affecting all Federal financial regulatory agencies and almost every aspect of the nation's financial services industry. However, many legal and financial scholars have been critical, arguing that the reforms were insufficient to prevent another financial crisis or additional "bail outs" of financial institutions.
In addition to the headline regulatory changes covering capital investment by banks and insurance companies, the Act introduces new regulation of hedge funds, alters the definition of accredited investors, requires reporting by all public companies on CEO to median employee pay ratios and other compensation data, enforces equitable access to credit for consumers, and provides incentives to promote banking among low- and medium-income residents.
The law was initially proposed on December 2, 2009, in the House of Representatives by Barney Frank
, and in the Senate Banking Committee
by Chairman Chris Dodd. Due to their involvement with the bill, the conference committee that reported on June 29, 2010, voted to name the bill after the two members of Congress.
The financial crisis of 2007–2010 led to widespread calls for changes in the regulatory system. In June 2009, President Obama introduced a proposal for a "sweeping overhaul of the United States financial regulatory system, a transformation on a scale not seen since the reforms that followed the Great Depression."
As the finalized bill emerged from conference, President Obama stated that the bill included 90 percent of the proposals. Major components of Obama's original proposal, listed by order in which they appear in the "A New Foundation" outline, include:
At Obama's request, congress later added the Volcker Rule
to this proposal in January 2010.
The Volcker Rule
was not included in Obama's initial June 2009 proposal, but Obama proposed the rule later in January 2010, after the House bill had passed. The rule, which prohibits depository banks from proprietary trading
(similar to the prohibition of combined investment and commercial banking in the Glass–Steagall Act) was passed only in the Senate bill, and the conference committee enacted the rule in a weakened form, Section 619 of the bill, that allowed banks to invest up to 3% of their Tier 1 capital in private equity and hedge funds as well as trade for hedging purposes.
The initial version of the bill passed the House along party lines in December by a vote of 223-202, and passed the Senate with amendments in May 2010 with a vote of 59-39 once again along party lines. The bill then moved to conference committee
, where the Senate bill was used as the base text although a few House provisions were included in the bill's base text.
One provision on which the White House did not take a position and remained in the final bill allows the SEC to rule on "proxy access
" – meaning that qualifying shareholders, including groups, can modify the corporate proxy statement
sent to shareholders to include their own director nominees, with the rules set by the SEC. This rule was unsuccessfully challenged in conference committee by Chris Dodd, who – under pressure from the White House – submitted an amendment limiting that access and ability to nominate directors only to single shareholders who have over 5% of the company and have held the stock for at least two years.
The "Durbin Amendment" is a provision in the final bill aimed at debit card interchange fees and increasing competition in payment processing. The provision was not in the House bill; it began as an amendment to the Senate bill from Dick Durbin and led to lobbying against it. The law applies to banks with over $10 billion in assets, and these banks would have to charge debit card interchange fees that are "reasonable and proportional to the actual cost" of processing the transaction. The bill aimed to restrict anti-competitive practices and encourage competition, and included provisions which allow retailers to refuse to use cards for small purchases and offer incentives for using cash or another type of card.
The Durbin Amendment also gave the Federal Reserve the power to regulate debit card interchange fees, and on December 16, 2010 the Fed proposed a maximum interchange fee of 12 cents per debit card transaction, which CardHub.com
estimated would cost large banks $14 billion annually. On June 29, 2011, the Fed issued its final rule, which holds that the maximum interchange fee an issuer can receive from a single debit card transaction is 21 cents plus 5 basis points multiplied by the amount of the transaction. This rule also allows issuers to raise their interchange fees by as much as one cent if they implement certain fraud-prevention measures. An issuer eligible for this adjustment, could therefore receive an interchange fee of as much as 24 cents for the average debit card transaction (valued at $38), according to the Federal Reserve. This cap — which will take effect on October 1, 2011 rather than July 21, 2011 as was previously announced — will reduce fees roughly $9.4 billion annually, according to CardHub.com
. As a result of the government limiting their revenue from interchange fees, banks made plans to raise account maintenance fees to compensate.
The New York Times published a comparison of the two bills prior to their reconciliation. On June 25, 2010, conferees finished reconciling the House and Senate versions of the bills and four days later filed a conference report. The conference committee changed the name of the Act from the "Restoring American Financial Stability Act of 2010." The House passed the conference report, 237–192 on June 30, 2010. On July 15, the Senate passed the Act, 60–39. President Obama signed the bill into law on July 21, 2010.
The Act is categorized into sixteen titles and by one law firm's count, it requires that regulators create 243 rules, conduct 67 studies, and issue 22 periodic reports. The stated aim of the legislation is:
The Act changes the existing regulatory structure, such as creating a host of new agencies (while merging and removing others) in an effort to streamline the regulatory process, increasing oversight of specific institutions regarded as a systemic risk, amending the Federal Reserve Act
, promoting transparency, and additional changes. The Act purports to provide rigorous standards and supervision to protect the economy and American consumers, investors and businesses, purports to end taxpayer funded bailouts of financial institutions, claims to provide for an advanced warning system on the stability of the economy, creates rules on executive compensation and corporate governance, and eliminates some loopholes that led to the 2008 economic recession. The new agencies are either granted explicit power over a particular aspect of financial regulation, or that power is transferred from an existing agency. All of the new agencies, and some existing ones that are not currently required to do so, are also compelled to report to Congress on an annual (or biannual) basis, to present the results of current plans and to explain future goals. Important new agencies created include Financial Stability Oversight Council
, the Office of Financial Research
, and the Bureau of Consumer Financial Protection.
Of the existing agencies, changes are proposed ranging from new powers to the transfer of powers in an effort to enhance the regulatory system. The institutions affected by these changes include most of the regulatory agencies currently involved in monitoring the financial system (Federal Deposit Insurance Corporation
(FDIC), U.S. Securities and Exchange Commission (SEC), Comptroller, Federal Reserve (the "Fed"), the Securities Investor Protection Corporation
(SIPC), etc.), and the final elimination of the Office of Thrift Supervision
(further described in Title III – Transfer of Powers to the Comptroller, the FDIC, and the FED).
As a practical matter, prior to the passage of the Dodd–Frank Act, investment advisers were not required to register with the SEC if the investment adviser had fewer than 15 clients during the previous 12 months and did not hold itself out generally to the public as an investment adviser. The Dodd–Frank Act eliminates that exemption, thereby rendering numerous additional investment advisers, hedge funds, and private equity firms subject to new registration requirements.
Certain non-bank financial institution
s and their subsidiaries will be supervised by the Fed in the same manner and to the same extent as if they were a bank holding company.
To the extent that the Act impacts all Federal financial regulatory agencies, eliminating one (the Office of Thrift Supervision
) and creating two (Financial Stability Oversight Council and the Office of Financial Research) in addition to several consumer protection agencies, including the Bureau of Consumer Financial Protection, this legislation in many ways represents a change in the way America’s financial markets will operate in the future. Few provisions of the Act became effective when the bill was signed. Only over the next 18 months as various regulatory agencies write rules that implement various sections of the Act, will the full importance and significance of the Act be known.
and researching the state of the economy and clarifies the comprehensive supervision of bank holding companies by the Federal Reserve. Title I creates the Financial Stability Oversight Council
and the Office of Financial Research
. The two new offices are attached to the Treasury Department, with the Treasury Secretary being Chair of the Council, and the Head of the Financial Research Office being a Presidential appointment with Senate confirmation. The Financial Stability Oversight Council is charged with identifying threats to the financial stability of the United States, promoting market discipline
, and responding to emerging risks to the stability of the United States financial system. At a minimum, it must meet quarterly. Specifically, there are three purposes assigned to the Council:
Duties
In the course of pursuing its goal (in its entirety), the Council has several duties enumerated to it that can broadly be described as anything required to:
More specifically, the Council must collate data (received from affiliated agencies, and optionally from the companies themselves) to assess risks to the financial system, monitor the financial services marketplace, make general regulatory recommendations to affiliated agencies reflecting a broader consensus, and it may also compel the Federal Reserve to assume an oversight position of certain institutions considered to pose a systemic risk. The Council must monitor domestic and international regulatory proposals and developments, and advise Congress in these areas. The Council and the associated Office of Financial Research
are charged to facilitate information sharing and coordination among the member agencies and other Federal and State agencies regarding domestic financial services policy development, rule-making, examinations, reporting requirements, and enforcement actions.
Membership
The Financial Stability Oversight Council has ten voting members:
There are five non-voting advisory members who may go into the equivalent of executive session
when discussing confidential supervisory information:
Resources
The Federal Advisory Committee Act
, which limits the powers of advisory committees, does not apply to the council. The council has an almost unlimited budget in that the Council may draw on virtually any resource of any department or agency of the Federal government. Any employee of the Federal government may be detailed to the Council without reimbursement and without interruption or loss of civil service status or privilege. Any member of the Council who is an employee of the Federal Government serves without additional compensation. In addition, "An employee of the Federal Government detailed to the Council shall report to and be subject to oversight by the Council during the assignment to the Council, and shall be compensated by the department or agency from which the employee was detailed." Additionally, "Any expenses of the Council shall be treated as expenses of, and paid by, the Office of Financial Research".
Authority
The Council has very broad powers to monitor, investigate and assess any risks to the US financial system. The Council has the authority to collect information from any State or Federal financial regulatory agency, and may direct the Office of Financial Research
, which supports the work of the Council, "to collect information from bank holding companies and nonbank financial companies". The Council monitors domestic and international regulatory proposals, including insurance and accounting issues, and advises Congress and the Federal Reserve on ways to enhance the integrity, efficiency, competitiveness and stability of the US financial markets. On a regular basis, the Council is required to make a report to Congress describing the state of the US Financial System. Each voting member of the Council is required to either affirm that the Federal Government is taking all reasonable steps to assure financial stability and mitigate systemic risk, or describe additional steps that need to be taken. Under specific circumstances, the Chairman of the Council (who is also the Secretary of the Treasury), with the concurrence of 2/3 voting members, may place nonbank financial companies or domestic subsidiaries of international banks under the supervision of the Federal Reserve if it appears that these companies could pose a threat to the financial stability of the US. The Federal Reserve may promulgate safe harbor regulations to exempt certain types of foreign banks from regulation, with approval of the Council. Under certain circumstances, the Council may provide for more stringent regulation of a financial activity by issuing recommendations to the primary financial regulatory agency, which the primary financial agency is obliged to implement – the Council reports to Congress on the implementation or failure to implement such recommendations.
Financial Reporting to the Council
The Council may require any bank or non-bank financial institution with assets over $50 billion to submit certified reports as to the company's:
The Comptroller General of the United States
may audit the Council or anyone working for the Council, and may have access to any information under the control of or used by the Council.
Office of Financial Research
Established as a department within the Treasury
, the Office is tasked with providing administrative, technical, budget analysis and other support services to the Council and its affiliated agencies.
The Director of the Office of Financial Research is appointed for a 6-year term. To the extent that his or her duties are exclusively focused on the Council and the Office of Financial Research, the Director is in effect the executive director of the Council. The Director, in consultation with the Chairman of the Council (who is the Secretary of the Treasury) proposes the annual budget of the Office. The Director may set salaries of the Office’s employees “without regard to chapter 51 or subchapter III of chapter 53 of Title 5 of the United States Code
, relating to classification of positions and General Schedule pay rates.”
The Director has Subpoena power and may require from any financial institution (bank or non-bank) any data needed to carry out the functions of the office.
Financial Research Director's Independent Reports to Congress
The Director reports to and testifies before only the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services of the House of Representatives. Testimony shall be annual on the activities of the Office, including the work of the Data Center and the Research and Analysis Center and the assessment of significant financial and market developments and potential emerging threats to the financial stability of the Country. These reports to Congress are independent of any political influence in that "No officer or agency of the United States shall have any authority to require the Director to submit the testimony... for approval, comment, or review prior to the submission of such testimony."
Resources
Like the Council, the Office of Financial Research may request, from department or agency of the United States, "such services, funds, facilities, staff, and other support services as the Office may determine advisable. Any Federal Government employee may be detailed to the Office without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege." Within the Treasury Department, there is a revolving fund, the "Financial Research Fund" into which all appropriations, fees, and assessments that the Office receives are deposited. Surplus funds may be invested. It is contemplated that within 2 years of establishment that the Office will be self-funding.
Authority
The Office has broad latitude in performing support services for both the Council and other Member Agencies, including data collection, applied research and essential long-term research, and developing tools for monitoring risk. The Office can also issue guidelines to standardizing the way data is reported, constituent agencies have three years to implement data standardization guidelines. In many ways, the Office of Financial Research is to be operated without the constraints of the Civil Service system. For example, does not need to follow Federal pay scale guidelines (see above), and it is mandated that the office have:
Data and Research & Analysis Centers
The Office is supported by two entities:
Financial Research Fund
The Financial Research Fund is a quasi-revolving fund that the Office uses to fund its operations. All appropriations and assessments are deposited into the Fund; surpluses may be invested. Funds are not subject to apportionment for any other purposes. Within 2-years of enactment, the Office should become self-funding. During the 2-year time following date of enactment, the Federal Reserve shall fund the Office.
Temporary Management Reporting
For a period of five years after enactment, the Office shall submit an annual report to the Senate Committee on Banking, Housing and Urban Affairs, and the House Committee on Financial Services, what amounts to a management report, including:
In addition to the supervised banks, insured depository institutions and securities companies that may be liquidated under existing law by the FDIC or Securities Investor Protection Corporation
(SIPC), Covered Financial Companies that may be liquidated under this title include insurance companies and non-bank financial companies not covered elsewhere. Once it is determined that a financial company satisfied the criteria for liquidation, if the financial company's board of directors does not agree, provisions are made for judicial appeal. Some procedures for FDIC and the SIPC to liquidate companies are revised. In addition to the policies and procedures that are in place for the financial institutions covered by FDIC and SIPC, this title provides for the orderly liquidation of other financial institutions. Depending on the type of financial institution, different regulatory organizations may jointly or independently, by 2/3 vote, determine whether a receiver should be appointed for a financial company:
Provided that the Secretary of Treasury, in consultation with the President may also made a determination to appoint a receiver for a financial company. And the GAO shall review and report to Congress about the Secretary's decision.
When a financial institution is placed into receivership under these provisions, within 24 hours the Secretary shall report to Congress, and within 60 days there shall be a report to the general public. The report on the recommendation to place a financial company into receivership shall contain various details on the state of the company, the impact of its default on the company, and the proposed action.
FDIC Liquidation
Unless otherwise stated, the FDIC is the liquidator for financial institutions who are not members of SIPC or banking members of the FDIC or insurance companies. In taking action under this title, the FDIC shall comply with various requirements:
Orderly Liquidation Fund
To the extent that the Act expanded the scope of financial firms that may be liquidated by the Federal Government, beyond the existing authorities of the FDIC and SIPC, there needed to be an additional source of funds, independent of the FDIC's Deposit Insurance Fund
, to be used in case of a non-bank or non-security financial company's liquidation. The Orderly Liquidation Fund is to be an FDIC-managed fund, to be used by the FDIC in the event of a covered financial company's liquidation that is not covered by FDIC or SIPC.
Initially, the Fund is to be capitalized over a period no shorter than five years, but no longer than ten; however, in the event the FDIC must make use of the Fund before it is fully capitalized, the Secretary of the Treasury and the FDIC are permitted to extend the period as determined necessary. The method of capitalization is by collecting risk-based assessment fees on any "eligible financial company" – which is defined as "[…] any bank holding company with total consolidated assets equal to or greater than $50 billion and any nonbank financial company supervised by the Board of Governors." The severity of the assessment fees can be adjusted on an as-needed basis (depending on economic conditions and other similar factors) and the relative size and value of a firm is to play a role in determining the fees to be assessed. The eligibility of a financial company to be subject to the fees is periodically reevaluated; or, in other words, a company that does not qualify for fees in the present, will be subject to the fees in the future if they cross the 50 billion line, or become subject to Federal Reserve scrutiny.
To the extent that a covered financial company has a negative net worth and its liquidation creates an obligation to the FDIC as its liquidator, the FDIC shall charge one or more risk-based assessment such that the obligation will be paid off within 60 months (5 years) of the issuance of the obligation. The assessments will be charged to any bank holding company with consolidated assets greater than $50 billion and any nonbank financial company supervised by the Federal Reserve. Under certain conditions, the assessment may be extended to regulated banks and other financial institutions. Assessments are imposed on a graduated basis, with financial companies having greater assets and risk being assessed at a higher rate.
Assessments will be implemented according to a matrix that the Financial Stability Oversight Council recommends to the FDIC. The matrix shall take into account:
Obligation limit and funding
When liquidating a financial company under this title (as opposed to FDIC or SIPD) there is a maximum limit of the Government's liquidation obligation, i.e., the Government's obligation can not exceed:
In the event that the Fund and other sources of capital are insufficient, the FDIC is authorized to buy and sell securities on behalf of the company (or companies) in receivership to raise additional capital. Taxpayers shall bear no losses from liquidating any financial company under this title and any losses shall be the responsibility of the financial sector, recovered through assessments:
Orderly Liquidation Authority Panel
Established inside the United States Bankruptcy Court
for the District of Delaware, the Panel is tasked with evaluating the conclusion of the Secretary of the Treasury that a company is in (or in danger of) default. The Panel consists of three bankruptcy judges drawn from the District of Delaware, all of whom are appointed by the Chief Judge of the United States Bankruptcy Court for the District of Delaware. In his appointments, the Chief Judge is instructed to weigh the financial expertise of the candidates. If the Panel concurs with the Secretary, the company in question is permitted to be placed into receivership
; if they do not concur, the Secretary has an opportunity to amend and refile his or her petition. In the event that a Panel decision is appealed, the United States Court of Appeals for the Third Circuit
has jurisdiction; in the event of further appeal, a writ of certiorari may be filed with the United States Supreme Court. In all appellate events, the scope of review is limited to whether the decision of the Secretary that a company is in (or in danger of) default is supported by substantial evidence.
and transferring its power over the appropriate holding companies to the Board of Governors of the Federal Reserve System
, state savings associations to the FDIC, and other thrifts to the Office of the Comptroller of the Currency. The thrift charter is to remain, although weakened. Additional changes include:
s, and other similar investment intermediaries for the first time, and is known severally as the "Private Fund Investment Advisers Registration Act of 2010". In general, it increases the reporting requirements of investment advisors, and limits the ability of these advisors to exclude information in reporting to the various Federal government agencies. However, there is an exemption in reporting for Venture Capital Fund Advisors, certain advisors with assets under management
under $150 million, and family offices (as defined by the Commission). The Act changes the definition of accredited investor
, which means someone with personal or (joint with spouse) net worth over a 4-year period, that averages more than $1 million, to exclude the value of the person's residence from the calculation. The Commission is allowed to adjust this value with time. The Act also provides that the SEC shall, every five years, adjust for the effects of inflation, that any factor used in rule or regulation be in multiples of $100,000.
Studies required under this title include:
Subtitle A, also called the "Federal Insurance Office Act of 2010", establishes within the Department of the Treasury the Federal Insurance Office which is tasked with:
The Office is headed by a director who is appointed for a career-reserved term by the Secretary of the Treasury.
In general, the Insurance Office may require any insurer company to submit such data as may be reasonably required in carrying out the functions of the Office.
A State insurance measure shall be preempted if, and only to the extent that the Director determines that the measure results in a less favorable treatment of a non-US insurer whose parent corporation is located in a country with an agreement or treaty with the United States.
Subtitle B: State-Based Insurance Reform
Subtitle B, also called the "Nonadmitted and Reinsurance Reform Act of 2010" says the States may enter into a compact to establish procedures to allocate among the States the premium taxes paid to an insured's home State. After 2-years, a State may not collect any "fees relating to licensing of an individual or entity as a surplus lines broker in the State unless the State has in effect at such time laws or regulations that provide for participation by the State in the national insurance producer database."
Title VI is also called the "Bank and Savings Association Holding Company and Depository Institution Regulatory Improvements Act of 2010". It introduces the so called "Volcker Rule
" after former Chairman of the Federal Reserve
Paul Volcker
by amending the Bank Holding Company Act of 1956
. With the aim of reducing the amount of speculative investments on large firms' balance sheets, it limits banking entities to owning no more in a hedge fund or private equity fund
than 3% of the total ownership interest. The total of all of the banking entity’s interests in hedge funds or private equity funds cannot exceed 3% of the Tier 1 capital of the banking entity. Furthermore no bank that has a direct or indirect relationship with a hedge fund or private equity fund, "may enter into a transaction with the fund, or with any other hedge fund or private equity fund that is controlled by such fund" without disclosing the full extent of the relationship to the regulating entity, and assuring that there are no conflicts of interest, “Banking entity” includes an insured depository institution, any company controlling an insured depository institution and such a company’s affiliates and subsidiaries, and must comply with the Act within two years of its passing, although it may apply for time extensions.
The rule distinguishes transactions by banking entities from transactions by nonbank financial companies supervised by the Federal Reserve Board. The rule states that in general, "an insured depository institution may not purchase an asset from, or sell an asset to, an executive officer, director, or principal shareholder of the insured depository institution, or any related interest of such person… unless— the transaction is on market terms; and if the transaction represents more than 10 percent of the capital stock and surplus of the insured depository institution, the transaction has been approved in advance by a majority of the members of the board of directors of the insured depository institution who do not have an interest in the transaction." Providing for the regulation of capital, the Volcker Rule says that regulators are required to impose upon institutions capital requirements that are "countercyclical, so that the amount of capital required to be maintained by a company increases in times of economic expansion and decreases in times of economic contraction," to ensure the safety and soundness of the organization. The rule also provides that an insured State bank may engage in a derivative transaction only if the law with respect to lending limits of the State in which the insured State bank is chartered takes into consideration credit exposure to derivative transactions. The title provides for a three year moratorium on approval of FDIC deposit insurance received after November 23, 2009, for an industrial bank, a credit card bank, or a trust bank that is directly or indirectly owned or controlled by a commercial firm.
Background
The Volcker Rule was first publicly endorsed by President Obama on January 21, 2010. The final version of the Act prepared by the conference committee included a strengthened Volcker rule by including language by Senators Jeff Merkley
, D-Oregon, and Carl Levin
, D-Michigan, that covers a greater range of proprietary trading than originally proposed by the administration, with the notable exceptions of trading in U.S. government securities and bonds issued by government-backed entities, and the rule also bans conflict of interest trading. The rule seeks to ensure that banking organizations are both well capitalized and well managed. The proposed draft form of the Vocker Rule was presented by regulators for public comment on October 11, 2011, with the rule due to go into effect on July 21, 2012.
Title VII, also called the Wall Street Transparency and Accountability Act of 2010, concerns regulation of over the counter swaps markets. Included in this section are the credit default swaps and credit derivative
that were the subject of several bank failures circa. 2007. Financial instruments have the meanings given the terms in section 1a of the Commodity Exchange Act
. On a broader level, the Act requires that various derivatives known as swaps
, which are traded over the counter
be cleared through exchanges or clearinghouse
s.
The Commodity Futures Trading Commission
(CFTC) and the Securities and Exchange Commission (SEC) both regulate derivatives known as swaps under the Act, but the SEC has authority over "security-based swaps". The Act repeals exemption from regulation for security-based swaps under the Gramm–Leach–Bliley Act The regulators are required to consult with each other before implementing any rule-making or issuing orders regarding several different types of security swaps. The CFTC and SEC, in consultation with the Federal Reserve are charged with further defining swap related terms that appear in Commodity Exchange Act
and section 3(a)(78) of the Securities Exchange Act of 1934
.
The title provides that, "Except as provided otherwise, no Federal assistance may be provided to any swaps entity with respect to any swap, security-based swap, or other activity of the swaps entity." An "Interagency Group" is constituted to the oversight of existing and prospective carbon markets to ensure an efficient, secure, and transparent carbon market, including oversight of spot markets and derivative markets.
s or investment advisers. This title calls for various studies and reports from the SEC and Government Accountability Office
(GAO). This title contains nine subtitles.
Subtitle A – Increasing Investor Protection
Subtitle A contains provisions:
Subtitle A provides authority for the SEC to impose regulations requiring "fiduciary duty" by broker-dealers and investment advisers to their customers. Although the Act does not create such a duty immediately, the Act authorizes the SEC to establish such a standard and requires that the SEC study the standards of care which broker-dealers and investment advisers apply to their customers and report to Congress on the results within 6 months. Under the law, commission and limited product range would not violate the duty and broker-dealers would not have a continuing duty after the investment advice is given.
Subtitle B – Increasing Regulatory Enforcement and Remedies
Subtitle B gives the SEC further powers of enforcement. This includes a "whistleblower bounty program" which is based upon a similar program established by the IRS in 2006; the program allows persons who provide information which leads to a successful SEC enforcement to receive 10 to 30% of the monetary sanctions over $1 million. Section 921 under the title allows the SEC to prohibit pre-dispute mandatory binding arbitration. Section 929I exempts the SEC from disclosing information obtained pursuant to 17(b) of the Securities Exchange Act of 1934
or information "based upon or derived from" such information "obtained by the Commission for use in furtherance of the purposes of this title, including surveillance, risk assessments, or other regulatory and oversight activities" – meaning information derived from examinations. The SEC rejected a Freedom of Information Act request on July 27, 2010 based upon this new law; while the SEC has stated that this legal change is necessary for registrants to comply with the examinations, the provision has been criticized for allowing the SEC to avoid the typical disclosure rules applicable to federal agencies.
Importantly, section 921I amends SEC Act of 1934 and the Investment Company Act of 1940 to allow the Securities Exchange Commission to not disclose records or information that have been obtained for uses such as “surveillance, risk assessments, or other regulatory and oversight activities” except it may not withhold information from judicial or congressional inquiry. The effective result of this change is that the US Freedom of Information Act
no longer applies to the SEC; the SEC can refuse to supply documents it deems as being part of its regulatory and oversight activities. Previously, the SEC used a narrower existing exemption for trade secrets when refusing Freedom of Information Requests.
Subtitle C – Improvements to the Regulation of Credit Rating Agencies
Recognizing credit ratings issued by credit rating agencies, including nationally recognized statistical rating organizations (NRSROs), are matters of national public interest, that credit rating agencies are critical “gatekeepers” in the debt market central to capital formation, investor confidence, and the efficient performance of the United States economy, Congress expanded regulation of credit rating agencies.
Subtitle C cites findings of conflicts of interest and inaccuracies during the recent financial crisis contributed significantly to the mismanagement of risks by financial institutions and investors which in turn adversely impacted the health of the United States economy as factors necessitating increased accountability and transparency by credit rating agencies.
Subtitle C mandates the creation by the SEC of an Office of Credit Ratings (OCR) to provide oversight over NRSROs and enhanced regulation of such entities.
Securities and Exchange Commission
Subtitle C grants authority to the Commission to temporarily suspend or permanently revoke the registration of an NRSRO with respect to a particular class or subclass of securities if after notice and hearing the NRSRO lacks the resources to produce credit ratings with integrity. Additional key provisions of the Act are:
Nationally Recognized Statistical Rating Organizations
Enhanced regulations of credit rating agencies include:
In addition, Subtitle C requires the SEC to conduct a study on strengthening NRSRO independence and recommends the SEC utilize its rulemaking authority to establish guidelines to prevent improper conflicts of interest arising from the performance of services unrelated to the issuance of credit ratings such as consulting, advisory, and other services. The Act requires the Comptroller General of the United States to conduct a study on alternative business models for compensating NRSROs
Subtitle D – Improvements to the Asset-Backed Securitization Process
In Subtitle D, the term “Asset-Backed Security” is defined as a fixed-income or other security collateralized by any type of self-liquidating financial asset, such as a loan, lease, mortgage, that allows the owner of the Asset-Backed Security to receive payments that depend on the cash flow of the (ex.) loan. For regulation purposes, Asset-Backed Securities are described as including (but not limited to):
For regulation purposes, Asset-Backed Securities do not include securities issued by a finance subsidiary to its parent company or company controlled by the parent company. Within nine months of enactment, rules and regulations are to be issued regarding requiring any securitizer to retain an economic interest in a portion of the credit risk. Regulations for assets that are):
Specifically, securitizers are:
The regulations are to prescribe several asset classes with separate rules for securitizers, including but not limited to, residential mortgages, commercial mortgages, commercial loans, and auto loans. The SEC and the Federal banking agencies may jointly issue exemptions, exceptions, and adjustments to the rules issues provided that they:
Additionally, the following institutions and programs are exempt:
The SEC may classify issuers and prescribe requirements appropriate for each class of issuers of asset-backed securities. The SEC shall also adopt regulations requiring each issuer of an asset-backed security to disclose, for each tranche
or class of security, information that will help identify each asset backing that security. Within six months of enactment, the SEC shall issue regulations prescribing representations and warranties in the marketing of asset-backed securities:
The SEC shall also prescribe a Due Diligence
analysis/review of the assets underlying the security, and a disclosure of that analysis.
Subtitle E – Accountability and Executive Compensation
Within one year of enactment, the SEC must issue rules that direct the national securities exchanges and associations to prohibit the listing of any security of an issuer that is not in compliance with the requirements of the compensation sections. At least once every 3 years, a public corporation is required to submit to a shareholder vote the approval of executive compensation. And once every six years there should be a submitted to shareholder vote whether the required approval of executive compensation should be more often that once every three years. Shareholders may disapprove any Golden Parachute
compensation to executives via a non-binding vote. Shareholders must be informed of the relationship between executive compensation actually paid and the financial performance of the issuer, taking into account any change in the value of the shares of stock and dividends of the issuer and any distributions as well as:
The company shall also disclose to shareholders whether any employee or member of the board of directors is permitted to purchase financial instruments that are designed to hedge or offset any decrease in the market value of equity securities that are part of a compensation package. Members of the Board of Director’s Compensation Committee shall be an independent member of the board of directors, a compensation consultant or legal council, as provided by rules issued by the SEC. Federal regulators, within 9 months of enactment of this legislation, shall proscribe regulations that a covered company shall disclose to the appropriate Federal regulator, all incentive-based compensation arrangements with sufficient information such that the regulator may determine:
Subtitle F – Improvements to the Management of the Securities and Exchange Commission
Within Subtitle F are various managerial changes intended to increase the efficiency of the agency will be implemented, including reports on internal control
s, a triennial report on personnel management by the head of the GAO (the Comptroller General of the United States
), a hotline for employees to report problems in the agency, a report by the GAO on the oversight of National Securities Associations, and a report by a consultant on reform of the SEC. Under Subtitle J of the title, the SEC will be funded through "match funding" which will in effect mean that its budget will be funded through filing fees.
Subtitle G – Strengthening Corporate Governance
Subtitle G provides that the SEC may issue rules and regulations that include a requirement that permit a shareholder to use a company’s proxy solicitation materials for the purpose of nominating individuals to membership on the board of directors. The company is also required to inform investors the reason why the same person is to serve as chairman of the board of directors and chief executive officer, or why different individuals are to serve as chairman of the board of directors and chief executive officer.
Subtitles H – Municipal Securities
This provision of the statute creates a guarantee of trust which correlates a municipal advisor (who provide advice to state and local governments regarding investments) with any municipal bodies which provides services. Also it alters the make-up of the Municipal Securities Rulemaking Board ("MSRB") and mandates that the Comptroller General conducts studies relating to municipal disclosure and municipal markets. The new MSRB will be composed of fifteen individuals, have the authority to regulate municipal advisors, and be permitted to charge fees regarding trade information. Also, it is mandated that the Comptroller General makes several recommendations, which must be submitted to Congress within at most 24 months of enactment of the Act.
Subtitle I – Public Company Accounting Oversight Board, Portfolio Margining, and Other Matters
Subtitle I is concerned with the establishment of a Public Company Accounting Oversight Board (or PCAOB). The PCAOB has the authority to establish oversight of certified public accounting firms. The Subtitle I provision allows the SEC to authorize necessary rules with respect to securities for borrowing. The SEC shall, as deemed appropriate, exercise transparency within this sector of the financial industry. A council of Inspectors General On Financial Oversight, consisting of several members of federal agencies (such as the United States Department of the Treasury
, the FDIC
, and the Federal Housing Finance Agency
) will be established. The council will more easily allow the sharing of data with inspectors general (which includes members by proxy
or in person from the SEC and CFTC
) with a focus on dealings which may be applicable to the general financial sector at large with focus on the improvement of financial oversight.
Subtitle J – Securities and Exchange Commission Match Funding
bi-annually. The Financial Stability Oversight Council
may issue a "stay" to the Bureau with an appealable 2/3 vote. Even though the Bureau is placed within the Fed, it operates independently. The Fed is prohibited from interfering with matters before the Director, directing any employee of the Bureau, modifying the functions and responsibilities of the Bureau or impeding an order of the Bureau. The Bureau is separated into five units:
Within the Bureau, a new Consumer Advisory Board assists the Bureau and informs it of emerging market trends. This Board is appointed by the Director of the Bureau, with at least six members recommended by regional Fed Presidents. Elizabeth Warren
was the first appointee of the President as an adviser to get the Bureau running. The Consumer Financial Protection Bureau can be found on the web.
The Bureau was formally established when Dodd–Frank was enacted, on July 21, 2010. It will obtain enforcement authority under the Enumerated Consumer Laws and begin most activities on the Designated Transfer Date, however, which is currently set for July 21, 2011.
A new position is created on the Board of Governors, the "Vice Chairman for Supervision", to advise the Board in several areas and:
Additionally, the GAO is now required to perform several different audits of the Fed:
The Fed may establish additional standards that include, but are not limited to:
The Fed may require supervised companies to "maintain a minimum amount of contingent capital that is convertible to equity in times of financial stress."
Title XI requires companies supervised by the Fed to periodically provide additional plans and reports, including:"
The title requires that in determining capital requirements for regulated organizations, off-balance-sheet activities shall be taken into consideration, being those things that create an accounting liability such as, but not limited to:"
, State, local or tribal governments. Multi-year programs for grants, cooperative agreements, etc. are also available.
to limit the Troubled Asset Relief Program, by reducing the funds available by $225 billion (from $700 billion to $475 billion) and further mandating that unused funds can not be used for any new programs.
Amendments to the Housing and Economic Recovery Act of 2008
and other sections of the Federal code to specify that any proceeds from the sale of securities purchased to help stabilize the financial system shall be:
The same conditions apply for any funds not used by the state under the American Recovery and Reinvestment Act of 2009
by December 31, 2012, provided that the President may waive these requirements if it is determined to be in the best interest of the nation.
Subtitle A – Residential Mortgage Loan Organization Standards
A "Residential Mortgage Originator" is defined as any person who either receives compensation for or represents to the public that they will take a residential loan application, assist a consumer in obtaining a loan, or negotiate terms for a loan. A residential Mortgage Originator is not a person who provides financing to an individual for the purchase of 3 or more properties in a year, or a licensed real estate broker/associate. All Mortgage Originators are to include on all loan documents any unique identifier of the mortgage originator provided by the Registry described in the Secure and Fair Enforcement for Mortgage Licensing Act of 2008
For any residential mortgage loan, no mortgage originator may receive compensation that varies based on the term of the loan, other than the principal amount. In general, the mortgage originator can only receive payment from the consumer, except as provided in rules that may be established by the Board. Additionally, the mortgage originator must verify the consumers ability to pay. A violation of the “ability to repay” standard, or a mortgage that has excessive fees or abusive terms, may be raised as a foreclosure defense by a borrower against a lender without regard to any statute of limitations. The Act bans the payment of yield spread premiums or other originator compensation that is based on the interest rate or other terms of the loans.
Subtitle B – Minimum Standards for Mortgages
In effect, this section of the Act establishes national underwriting standards for residential loans. It is not the intent of this section to establish rules or regulations that would require a loan to be made that would not be regarded as acceptable or prudential by the appropriate regulator of the financial institution. However, the loan originator shall make a reasonable and good faith effort based on verified and documented information that “at the time the loan is consummated, the consumer has a reasonable ability to repay the loan, according to the terms, and all applicable taxes, insurance (including mortgage guarantee insurance
), and other assessments.” Also included in these calculations should be any payments for a second mortgage
or other subordinate loans. Income verification is mandated for residential mortgages. Certain loan provisions, including prepayment penalties on some loans, and mandatory arbitration on all residential loans, are prohibited.
This section also defined a “Qualified Mortgage” as any residential mortgage loan that the regular periodic payments for the loan does not increase the principal balance or allow the consumer to defer repayment of principal (with some exceptions), and has points and fees being less than 3% of the loan amount. The Qualified Mortgage terms are important to the extent that the loan terms plus an “Ability to Pay” presumption create a safe harbor
situation concerning certain technical provisions related to foreclosure.
Subtitle C – High-Cost Mortgages
A “High-Cost Mortgage” as well as a reverse mortgage
are sometimes referred to as “certain home mortgage transactions” in the Fed’s Regulation Z (the regulation used to implement various sections of the Truth in Lending Act
) High-Cost Mortgage is redefined as a “consumer credit transaction that is secured by the consumer’s principal dwelling” (excluding reverse mortgages which are covered in a separate sections), which include:
New provisions for calculating adjustable rates as well as definitions for points and fees are also included.
When receiving a High-Cost mortgage, the consumer must obtain pre-loan counseling from a certified counselor. The Act also stipulates there are additional "Requirements to Existing Residential Mortgages". The changes to existing contracts are:
Subtitle D – Office of Housing Counseling
Subtitle D, known as the Expand and Preserve Home Ownership Through Counseling Act, creates a new Office of Housing Counseling, within the department of Housing and Urban Development. The director reports to the Secretary of Housing and Urban Development. The Director shall have primary responsibility within the Department for consumer oriented homeownership and rental housing counseling. To advise the Director, the Secretary shall appoint an advisory committee of not more than 12 individuals, equally representing mortgage and real estate industries, and including consumers and housing counseling agencies. Council members are appointed to 3 year terms. This department will coordinate media efforts to educate the general public in home ownership and home finance topics.
The Secretary of Housing and Urban Development is authorized to provide grants to HUD-approved housing counseling agencies and State Housing Finance Agencies to provide education assistance to various groups in home ownership. The Secretary is also instructed, in consultation with other Federal agencies responsible for financial and banking regulation, to establish a database to track foreclosures and defaults on mortgage loans for 1 through 4 unit residential properties.
Subtitle E – Mortgage Servicing
Subtitle E concerns rules concerning escrow and settlement procedures for people who are in trouble repaying their mortgages, and also makes amendments to the Real Estate Settlement Procedures Act
of 1974. In general, in connection with a residential mortgage there should be established an escrow
or impound account for the payment of taxes, hazard insurance, and (if applicable) flood insurance, mortgage insurance, ground rents, and any other required periodic payments. Lender shall disclose to borrower at least three business days before closing the specifics of the amount required to be in the escrow account and the subsequent uses of the funds. If an escrow, impound, or trust account is not established, or the consumer chooses to close the account, the servicer shall provide a timely and clearly written disclosure to the consumer that advises the consumer of the responsibilities of the consumer and implications for the consumer in the absence of any such account. The amendments to the Real Estate Settlement Procedures Act
of 1974 (or RESPA) change how a Mortgage servicer
(those who administer loans held by Fannie Mae, Freddie Mac, etc.) should interact with consumers.
Subtitle F – Appraisal Activities
A "certified or licensed appraiser" is defined as someone who:
The Fed, Comptroller of the Currency, FDIC, National Credit Union Administration Board, Federal Housing Agency and Bureau of Consumer Financial Protection (created in this law) shall jointly prescribe regulations.
The use of Automated Valuation Models to be used to estimate collateral value for mortgage lending purposes.
Automated valuation models shall adhere to quality control standards designed to,
The Fed, the Comptroller of the Currency, the FDIC, the National Credit Union Administration Board, the Federal Housing Finance Agency, and the Bureau of Consumer Financial Protection, in consultation with the staff of the Appraisal Subcommittee and the Appraisal Standards Board
of The Appraisal Foundation
, shall promulgate regulations to implement the quality control standards required under this section that devises Automated Valuation Models.
Residential and 1-to-4 unit single family residential real estate are enforced by: Federal Trade Commission, the Bureau of Consumer Financial Protection, and a State attorney general. Commercial enforcement is by the Financial regulatory agency that supervised the financial institution originating the loan.
Broker Price Opinions may not be used as the primary basis to determine the value of a consumer's principal dwelling; but valuation generated by an automated valuation model is not considered a Broker Price Opinion.
The standard settlement form (commonly known as the HUD 1) may include, in the case of an appraisal coordinated by an appraisal management company, a clear disclosure of:
Within one year, the Government Accountability Office shall conduct a study on the effectiveness and impact of various appraisal methods, valuation models and distribution channels, and on the home valuation code of conduct and the appraisal subcommittee.
Subtitle G – Mortgage Resolution and Modification
The Secretary of Housing and Urban Development is charged with developing a program to ensure protection of current and future tenants and at-risk multifamily (5 or more units) properties. The Secretary may coordinate the program development with the Secretary of the Treasury, the FDIC, the Fed, the Federal Housing Finance Agency, and any other Federal Government agency deemed appropriate. The criteria may include:
Previously the Treasury Department has created the Home Affordable Modification Program
, set up to help eligible home owners with loan modifications on their home mortgage debt. This section requires every mortgage servicer
participating in the program and denies a re-modification request to provide the borrower with any data used in a net present value (NPV) analysis. The Secretary of the Treasury is also directed to establish a Web-based site that explains NPV calculations.
The secretary of the Treasury is instructed to develop a Web-based site to explain the Home Affordable Modification Program
and associated programs, that also provides an evaluation of the impact of the program on home loan modifications.
Subtitle H – Miscellaneous Provisions
is instructed to evaluate any loan to a country if
is amended to require disclosure of payments relating to the acquisition of licenses for exploration, production, etc., where "payment" includes fees, production entitlements, bonuses, and other material benefits.
, but rather that "[i]t's about putting together an architecture that works."
With regards to the lack of bipartisan input on the legislation, Dodd alleged that had he put together a "[…] bipartisan compromise, I think you make a huge mistake by doing that. You're given very few moments in history to make this kind of a difference, and we're trying to do that." Put another way, Dodd construed the lack of Republican
amendments as a sign "[…] that the bill is a strong one."
Richard Shelby
, the top-ranking Republican on the Senate Banking Committee and the one who proposed the changes to the Fed governance, voiced his reasons for why he felt the changes needed to be made: "It's an obvious conflict of interest […] It's basically a case where the banks are choosing or having a big voice in choosing their regulator. It's unheard of." Democratic Senator Jack Reed agreed, saying "The whole governance and operation of the Federal Reserve has to be reviewed and should be reviewed. I don't think we can just assume, you know, business as usual."
Barney Frank
, who has proposed his own legislative package of financial reforms in the House
, did not comment on the Stability Act directly, but rather indicated that he was pleased that reform efforts were happening at all – "Obviously the bills aren't going to be identical, but it confirms that we are moving in the same direction and reaffirms my confidence that we are going to be able to get an appropriate, effective reform package passed very soon."
During a Senate Republican press conference on April 21, 2010, Richard Shelby
reported that he and Dodd were meeting "every day", and were attempting to forge a bipartisan bill. Shelby also expressed his optimism that a "good bill" will be reached, and that "we're closer than ever." Saxby Chambliss
echoed Shelby's sentiments, saying "I feel exactly as Senator Shelby does about the Banking Committee negotiations.", but voiced his concern about maintaining an active derivatives market and not drive financial firms overseas. Kay Bailey Hutchison
indicated her desire to see State banks have access to the Fed, while Orrin Hatch
had concerns over transparency, and the lack of Fannie and Freddy reform.
, regarded the reforms as haphazard and dangerous, saying "To some degree, it looks like they're just blowing up everything for the sake of change […] [i]f this were to happen, the regulatory system would be in chaos for years. You have to look at the real-world impact of this."
Some experts have argued that the Dodd–Frank Act isn’t strong enough, arguing that it fails to protect consumers adequately, and, more importantly, does not end too big to fail
.
The Securities Industry and Financial Markets Association
(SIFMA) — the "top Wall Street lobby" — has expressed support for the law, and has urged Congress not to change or repeal it in order to prevent a stronger law from passing.
Law professor and bankruptcy expert David Skeel concluded that the law has two major themes which are "government partnership with the largest Wall Street banks and financial institutions" and "a system of ad hoc interventions by regulators that are divorced from basic rule-of-law constraints". While he states that "the overall pattern of the legislation is disturbing", he also concludes that some are clearly helpful, such as the derivatives exchanges and the Consumer Financial Protection Bureau.
released a cost-estimate of enacting the legislation. In its introduction, the CBO briefly discussed the legislation and then went on to generally state that it is unable to assess the cost of financial crises under current law, and added that estimating the cost of similar crises under this legislation (or other proposed ideas) is equally (and inherently) difficult: "[…] CBO has not determined whether the estimated costs under the Act would be smaller or larger than the costs of alternative approaches to addressing future financial crises and the risks they pose to the economy as a whole."
In terms of the impact on the Federal budget, the CBO estimates that deficits would reduce between 2011–2020, but largely in part due to the risk-based assessment fees levied to initially capitalize the Orderly Liquidation Fund; after which, the majority of revenue for the Fund would be drawn primarily from interest payments. Due to this, the CBO projects that eventually the money being paid into the Fund (in the form of fees) would be exceeded by the expenses of the Fund itself. Additionally, the CBO points out that the reclassification of collected fees by various government agencies has the effect of boosting revenue.
The cost estimate also raises questions about the time-frame of capitalizing the Fund – their estimate took the projected value of fees collected for the Fund (and interest collected on the Fund) weighed against the expected expense of having to deal with corporate default(s) until 2020. Their conclusion was it would take longer than 10 years to fully capitalize the Fund (at which point they estimated it would be approximately 45 billion), although no specifics beyond that were expressed.
The projection was a $5 billion or more deficit increase in at least one of the ten-year periods starting in 2021.
to raise capital and create new jobs. However, according to Reuters, the Dodd-Frank act is believed to be a job creator for the legal industry.
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
that was signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
on July 21, 2010. The Act implements financial regulatory reform
Wall Street reform
Wall Street Reform or Financial Reform was signed by President of the United States Barack Obama on July 22, 2010. Since the economic crisis of 2007-09 , there was an ongoing debate taking place regarding the insufficient oversight and regulation of the US financial system, non-regulated...
sponsored by the Democratically
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
controlled 111th United States Congress
111th United States Congress
The One Hundred Eleventh United States Congress was the meeting of the legislative branch of the United States federal government from January 3, 2009 until January 3, 2011. It began during the last two weeks of the George W. Bush administration, with the remainder spanning the first two years of...
and the Obama administration.
Passed as a response to the late-2000s recession, the Act was touted as the most sweeping change to financial regulation
Financial regulation
Financial regulation is a form of regulation or supervision, which subjects financial institutions to certain requirements, restrictions and guidelines, aiming to maintain the integrity of the financial system...
in the United States since the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
, purportedly representing a significant change in the American financial regulatory environment affecting all Federal financial regulatory agencies and almost every aspect of the nation's financial services industry. However, many legal and financial scholars have been critical, arguing that the reforms were insufficient to prevent another financial crisis or additional "bail outs" of financial institutions.
In addition to the headline regulatory changes covering capital investment by banks and insurance companies, the Act introduces new regulation of hedge funds, alters the definition of accredited investors, requires reporting by all public companies on CEO to median employee pay ratios and other compensation data, enforces equitable access to credit for consumers, and provides incentives to promote banking among low- and medium-income residents.
The law was initially proposed on December 2, 2009, in the House of Representatives by Barney Frank
Barney Frank
Barney Frank is the U.S. Representative for . A member of the Democratic Party, he is the former chairman of the House Financial Services Committee and is considered the most prominent gay politician in the United States.Born and raised in New Jersey, Frank graduated from Harvard College and...
, and in the Senate Banking Committee
United States Senate Committee on Banking, Housing, and Urban Affairs
The United States Senate Committee on Banking, Housing, and Urban Affairs has jurisdiction over matters related to: banks and banking, price controls, deposit insurance, export promotion and controls, federal monetary policy, financial aid to commerce and industry, issuance of redemption of notes,...
by Chairman Chris Dodd. Due to their involvement with the bill, the conference committee that reported on June 29, 2010, voted to name the bill after the two members of Congress.
Origins and proposal
As the finalized bill emerged from conference, President Obama stated that the bill included 90 percent of the proposals. Major components of Obama's original proposal, listed by order in which they appear in the "A New Foundation" outline, include:
- The consolidation of regulatory agencies, elimination of the national thrift charter, and new oversight council to evaluate systemic risk;
- Comprehensive regulation of financial markets, including increased transparency of derivatives (bringing them onto exchangesExchange (organized market)An exchange is a highly organized market where tradable securities, commodities, foreign exchange, futures, and options contracts are sold and bought.-Description:...
); - Consumer protection reforms including a new consumer protection agency and uniform standards for "plain vanilla" products as well as strengthened investor protection;
- Tools for financial crises, including a "resolution regime" complementing the existing Federal Deposit Insurance CorporationFederal Deposit Insurance CorporationThe Federal Deposit Insurance Corporation is a United States government corporation created by the Glass–Steagall Act of 1933. It provides deposit insurance, which guarantees the safety of deposits in member banks, currently up to $250,000 per depositor per bank. , the FDIC insures deposits at...
(FDIC) authority to allow for orderly winding down of bankrupt firms, and including a proposal that the Federal Reserve (the "Fed") receive authorization from the Treasury for extensions of credit in "unusual or exigent circumstances"; - Various measures aimed at increasing international standards and cooperation including proposals related to improved accounting and tightened regulation of credit rating agencies.
At Obama's request, congress later added the Volcker Rule
Volcker Rule
The Volcker Rule is a specific section of the Dodd–Frank Wall Street Reform and Consumer Protection Act originally proposed by American economist and former United States Federal Reserve Chairman Paul Volcker to restrict United States banks from making certain kinds of speculative investments that...
to this proposal in January 2010.
Legislative response and passage
The bills that came after Obama's proposal were largely consistent with the proposal, but contained some additional provisions and differences in implementation.The Volcker Rule
Volcker Rule
The Volcker Rule is a specific section of the Dodd–Frank Wall Street Reform and Consumer Protection Act originally proposed by American economist and former United States Federal Reserve Chairman Paul Volcker to restrict United States banks from making certain kinds of speculative investments that...
was not included in Obama's initial June 2009 proposal, but Obama proposed the rule later in January 2010, after the House bill had passed. The rule, which prohibits depository banks from proprietary trading
Proprietary trading
Proprietary trading occurs when a firm trades stocks, bonds, currencies, commodities, their derivatives, or other financial instruments, with the firm's own money as opposed to its customers' money, so as to make a profit for itself...
(similar to the prohibition of combined investment and commercial banking in the Glass–Steagall Act) was passed only in the Senate bill, and the conference committee enacted the rule in a weakened form, Section 619 of the bill, that allowed banks to invest up to 3% of their Tier 1 capital in private equity and hedge funds as well as trade for hedging purposes.
The initial version of the bill passed the House along party lines in December by a vote of 223-202, and passed the Senate with amendments in May 2010 with a vote of 59-39 once again along party lines. The bill then moved to conference committee
Conference committee
A conference committee is a joint committee of a bicameral legislature, which is appointed by, and consists of, members of both chambers to resolve disagreements on a particular bill...
, where the Senate bill was used as the base text although a few House provisions were included in the bill's base text.
One provision on which the White House did not take a position and remained in the final bill allows the SEC to rule on "proxy access
Proxy voting
Proxy voting has two forms: delegable voting and delegated voting, which are procedures for the delegation to another member of a voting body of that member's power to vote in his absence, and/or for the selection of additional representatives, as in the case with transitive proxies...
" – meaning that qualifying shareholders, including groups, can modify the corporate proxy statement
Proxy statement
A proxy statement is a statement required of a United States firm when soliciting shareholder votes. This statement is filed in advance of the annual meeting. The firm needs to file a proxy statement, otherwise known as a Form DEF 14A , with the U.S. Securities and Exchange Commission...
sent to shareholders to include their own director nominees, with the rules set by the SEC. This rule was unsuccessfully challenged in conference committee by Chris Dodd, who – under pressure from the White House – submitted an amendment limiting that access and ability to nominate directors only to single shareholders who have over 5% of the company and have held the stock for at least two years.
The "Durbin Amendment" is a provision in the final bill aimed at debit card interchange fees and increasing competition in payment processing. The provision was not in the House bill; it began as an amendment to the Senate bill from Dick Durbin and led to lobbying against it. The law applies to banks with over $10 billion in assets, and these banks would have to charge debit card interchange fees that are "reasonable and proportional to the actual cost" of processing the transaction. The bill aimed to restrict anti-competitive practices and encourage competition, and included provisions which allow retailers to refuse to use cards for small purchases and offer incentives for using cash or another type of card.
The Durbin Amendment also gave the Federal Reserve the power to regulate debit card interchange fees, and on December 16, 2010 the Fed proposed a maximum interchange fee of 12 cents per debit card transaction, which CardHub.com
CardHub.com
CardHub.com is a credit card comparison website owned and operated by Evolution Finance, Inc., a personal finance company founded in 2008 and based in Arlington, Virginia in the United States....
estimated would cost large banks $14 billion annually. On June 29, 2011, the Fed issued its final rule, which holds that the maximum interchange fee an issuer can receive from a single debit card transaction is 21 cents plus 5 basis points multiplied by the amount of the transaction. This rule also allows issuers to raise their interchange fees by as much as one cent if they implement certain fraud-prevention measures. An issuer eligible for this adjustment, could therefore receive an interchange fee of as much as 24 cents for the average debit card transaction (valued at $38), according to the Federal Reserve. This cap — which will take effect on October 1, 2011 rather than July 21, 2011 as was previously announced — will reduce fees roughly $9.4 billion annually, according to CardHub.com
CardHub.com
CardHub.com is a credit card comparison website owned and operated by Evolution Finance, Inc., a personal finance company founded in 2008 and based in Arlington, Virginia in the United States....
. As a result of the government limiting their revenue from interchange fees, banks made plans to raise account maintenance fees to compensate.
The New York Times published a comparison of the two bills prior to their reconciliation. On June 25, 2010, conferees finished reconciling the House and Senate versions of the bills and four days later filed a conference report. The conference committee changed the name of the Act from the "Restoring American Financial Stability Act of 2010." The House passed the conference report, 237–192 on June 30, 2010. On July 15, the Senate passed the Act, 60–39. President Obama signed the bill into law on July 21, 2010.
Overview
To promote the financial stability of the United States by improving accountability and transparency in the financial system, to end "too big to fail", to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes.
The Act changes the existing regulatory structure, such as creating a host of new agencies (while merging and removing others) in an effort to streamline the regulatory process, increasing oversight of specific institutions regarded as a systemic risk, amending the Federal Reserve Act
Federal Reserve Act
The Federal Reserve Act is an Act of Congress that created and set up the Federal Reserve System, the central banking system of the United States of America, and granted it the legal authority to issue Federal Reserve Notes and Federal Reserve Bank Notes as legal tender...
, promoting transparency, and additional changes. The Act purports to provide rigorous standards and supervision to protect the economy and American consumers, investors and businesses, purports to end taxpayer funded bailouts of financial institutions, claims to provide for an advanced warning system on the stability of the economy, creates rules on executive compensation and corporate governance, and eliminates some loopholes that led to the 2008 economic recession. The new agencies are either granted explicit power over a particular aspect of financial regulation, or that power is transferred from an existing agency. All of the new agencies, and some existing ones that are not currently required to do so, are also compelled to report to Congress on an annual (or biannual) basis, to present the results of current plans and to explain future goals. Important new agencies created include Financial Stability Oversight Council
Financial Stability Oversight Council
The Financial Stability Oversight Council is a United States Federal government organization, established by Title I of the Dodd–Frank Wall Street Reform and Consumer Protection Act, which was signed into law by President Barack Obama on July 21, 2010. Dodd-Frank provides the Council with broad...
, the Office of Financial Research
Office of Financial Research
The Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
, and the Bureau of Consumer Financial Protection.
Of the existing agencies, changes are proposed ranging from new powers to the transfer of powers in an effort to enhance the regulatory system. The institutions affected by these changes include most of the regulatory agencies currently involved in monitoring the financial system (Federal Deposit Insurance Corporation
Federal Deposit Insurance Corporation
The Federal Deposit Insurance Corporation is a United States government corporation created by the Glass–Steagall Act of 1933. It provides deposit insurance, which guarantees the safety of deposits in member banks, currently up to $250,000 per depositor per bank. , the FDIC insures deposits at...
(FDIC), U.S. Securities and Exchange Commission (SEC), Comptroller, Federal Reserve (the "Fed"), the Securities Investor Protection Corporation
Securities Investor Protection Corporation
The Securities Investor Protection Corporation is a federally mandated, non-profit, member-funded, corporation in the United States. It protects investors in certain securities from financial harm if a broker-dealer fails...
(SIPC), etc.), and the final elimination of the Office of Thrift Supervision
Office of Thrift Supervision
The Office of Thrift Supervision was a United States federal agency under the Department of the Treasury that charters, supervises, and regulates all federally- and state-chartered savings banks and savings and loans associations. It was created in 1989 as a renamed version of another federal agency...
(further described in Title III – Transfer of Powers to the Comptroller, the FDIC, and the FED).
As a practical matter, prior to the passage of the Dodd–Frank Act, investment advisers were not required to register with the SEC if the investment adviser had fewer than 15 clients during the previous 12 months and did not hold itself out generally to the public as an investment adviser. The Dodd–Frank Act eliminates that exemption, thereby rendering numerous additional investment advisers, hedge funds, and private equity firms subject to new registration requirements.
Certain non-bank financial institution
Non-bank financial institution
A non-bank financial institution is a financial institution that does not have a full banking license or is not supervised by a national or international banking regulatory agency. NBFIs facilitate bank-related financial services, such as investment, risk pooling, contractual savings, and market...
s and their subsidiaries will be supervised by the Fed in the same manner and to the same extent as if they were a bank holding company.
To the extent that the Act impacts all Federal financial regulatory agencies, eliminating one (the Office of Thrift Supervision
Office of Thrift Supervision
The Office of Thrift Supervision was a United States federal agency under the Department of the Treasury that charters, supervises, and regulates all federally- and state-chartered savings banks and savings and loans associations. It was created in 1989 as a renamed version of another federal agency...
) and creating two (Financial Stability Oversight Council and the Office of Financial Research) in addition to several consumer protection agencies, including the Bureau of Consumer Financial Protection, this legislation in many ways represents a change in the way America’s financial markets will operate in the future. Few provisions of the Act became effective when the bill was signed. Only over the next 18 months as various regulatory agencies write rules that implement various sections of the Act, will the full importance and significance of the Act be known.
Title I – Financial Stability
Title I outlines two new agencies tasked with monitoring systemic riskSystemic risk
In finance, systemic risk is the risk of collapse of an entire financial system or entire market, as opposed to risk associated with any one individual entity, group or component of a system. It can be defined as "financial system instability, potentially catastrophic, caused or exacerbated by...
and researching the state of the economy and clarifies the comprehensive supervision of bank holding companies by the Federal Reserve. Title I creates the Financial Stability Oversight Council
Financial Stability Oversight Council
The Financial Stability Oversight Council is a United States Federal government organization, established by Title I of the Dodd–Frank Wall Street Reform and Consumer Protection Act, which was signed into law by President Barack Obama on July 21, 2010. Dodd-Frank provides the Council with broad...
and the Office of Financial Research
Office of Financial Research
The Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
. The two new offices are attached to the Treasury Department, with the Treasury Secretary being Chair of the Council, and the Head of the Financial Research Office being a Presidential appointment with Senate confirmation. The Financial Stability Oversight Council is charged with identifying threats to the financial stability of the United States, promoting market discipline
Market discipline
Buyers and sellers in a market are said to be constrained by market discipline in setting prices because they have strong incentives to generate revenues and avoid bankruptcy...
, and responding to emerging risks to the stability of the United States financial system. At a minimum, it must meet quarterly. Specifically, there are three purposes assigned to the Council:
- identify the risks to the financial stability of the United States from both financial and non-financial organizations
- promote market discipline, by eliminating expectations that the Government will shield them from losses in the event of failure
- respond to emerging threats to the stability of the US financial system
Duties
In the course of pursuing its goal (in its entirety), the Council has several duties enumerated to it that can broadly be described as anything required to:
- enhance the integrity, efficiency, competitiveness, and stability of United States financial markets
- promote market discipline
- maintain investor confidence
More specifically, the Council must collate data (received from affiliated agencies, and optionally from the companies themselves) to assess risks to the financial system, monitor the financial services marketplace, make general regulatory recommendations to affiliated agencies reflecting a broader consensus, and it may also compel the Federal Reserve to assume an oversight position of certain institutions considered to pose a systemic risk. The Council must monitor domestic and international regulatory proposals and developments, and advise Congress in these areas. The Council and the associated Office of Financial Research
Office of Financial Research
The Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
are charged to facilitate information sharing and coordination among the member agencies and other Federal and State agencies regarding domestic financial services policy development, rule-making, examinations, reporting requirements, and enforcement actions.
Membership
The Financial Stability Oversight Council has ten voting members:
- Secretary of the TreasuryUnited States Secretary of the TreasuryThe Secretary of the Treasury of the United States is the head of the United States Department of the Treasury, which is concerned with financial and monetary matters, and, until 2003, also with some issues of national security and defense. This position in the Federal Government of the United...
(chairs the Council) - Chairman of the Federal ReserveChairman of the Federal ReserveThe Chairman of the Board of Governors of the Federal Reserve System is the head of the central banking system of the United States. Known colloquially as "Chairman of the Fed," or in market circles "Fed Chairman" or "Fed Chief"...
- Comptroller of the Currency
- Director of the Bureau of Consumer Financial Protection
- Chairperson of the U.S. Securities and Exchange Commission
- Chairperson of the Federal Deposit Insurance CorporationFederal Deposit Insurance CorporationThe Federal Deposit Insurance Corporation is a United States government corporation created by the Glass–Steagall Act of 1933. It provides deposit insurance, which guarantees the safety of deposits in member banks, currently up to $250,000 per depositor per bank. , the FDIC insures deposits at...
- Chairperson of the Commodity Futures Trading CommissionCommodity Futures Trading CommissionThe U.S. Commodity Futures Trading Commission is an independent agency of the United States government that regulates futures and option markets....
- Director of the Federal Housing Finance AgencyFederal Housing Finance AgencyThe Federal Housing Finance Agency is an independent federal agency created as the successor regulatory agency resulting from the statutory merger of the Federal Housing Finance Board , the Office of Federal Housing Enterprise Oversight , and the U.S...
- the Chairman of the National Credit Union Administration Board
- an independent member (with insurance expertise), appointed by the President, with the advice and consentAdvice and consentAdvice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or constitutional contexts, describing a situation in which the executive branch of a government enacts something previously approved of by the legislative branch.-General:The expression is...
of the Senate, for a term of 6 years.
There are five non-voting advisory members who may go into the equivalent of executive session
Executive session
An executive session is a portion of the United States Senate's daily session in which it considers nominations and treaties, or other items introduced by the President of the United States. These items are termed executive business; therefore, the session is an executive session. It can either be...
when discussing confidential supervisory information:
- Director of the Office of Financial ResearchOffice of Financial ResearchThe Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
(part of the Treasury Department and established in this Act) who is the Council's executive director - Director of the Federal Insurance Office (part of the Treasury Department and established in this Act)
- a state insurance commissioner, to be designated by a selection process determined by the state insurance commissioners (2-year term)
- a state banking supervisor, to be designated by a selection process determined by the state banking supervisors (2-year term)
- a state securities commissioner (or officer performing like function) to be designated by a selection process determined by such state security commissioners (2-year term)
Resources
The Federal Advisory Committee Act
Federal Advisory Committee Act
The Federal Advisory Committee Act is a United States federal law , which governs the behavior of federal advisory committees. There are now approximately 1,000 such committees...
, which limits the powers of advisory committees, does not apply to the council. The council has an almost unlimited budget in that the Council may draw on virtually any resource of any department or agency of the Federal government. Any employee of the Federal government may be detailed to the Council without reimbursement and without interruption or loss of civil service status or privilege. Any member of the Council who is an employee of the Federal Government serves without additional compensation. In addition, "An employee of the Federal Government detailed to the Council shall report to and be subject to oversight by the Council during the assignment to the Council, and shall be compensated by the department or agency from which the employee was detailed." Additionally, "Any expenses of the Council shall be treated as expenses of, and paid by, the Office of Financial Research".
Authority
The Council has very broad powers to monitor, investigate and assess any risks to the US financial system. The Council has the authority to collect information from any State or Federal financial regulatory agency, and may direct the Office of Financial Research
Office of Financial Research
The Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
, which supports the work of the Council, "to collect information from bank holding companies and nonbank financial companies". The Council monitors domestic and international regulatory proposals, including insurance and accounting issues, and advises Congress and the Federal Reserve on ways to enhance the integrity, efficiency, competitiveness and stability of the US financial markets. On a regular basis, the Council is required to make a report to Congress describing the state of the US Financial System. Each voting member of the Council is required to either affirm that the Federal Government is taking all reasonable steps to assure financial stability and mitigate systemic risk, or describe additional steps that need to be taken. Under specific circumstances, the Chairman of the Council (who is also the Secretary of the Treasury), with the concurrence of 2/3 voting members, may place nonbank financial companies or domestic subsidiaries of international banks under the supervision of the Federal Reserve if it appears that these companies could pose a threat to the financial stability of the US. The Federal Reserve may promulgate safe harbor regulations to exempt certain types of foreign banks from regulation, with approval of the Council. Under certain circumstances, the Council may provide for more stringent regulation of a financial activity by issuing recommendations to the primary financial regulatory agency, which the primary financial agency is obliged to implement – the Council reports to Congress on the implementation or failure to implement such recommendations.
Financial Reporting to the Council
The Council may require any bank or non-bank financial institution with assets over $50 billion to submit certified reports as to the company's:
- financial condition
- systems in place to monitor and control any risks
- transactions with subsidiaries that are regulated banks
- the extent to which any of the company's activities could have a potential disruptive impact on financial markets or the overall financial stability of the country
The Comptroller General of the United States
Comptroller General of the United States
The Comptroller General of the United States is the director of the Government Accountability Office , a legislative branch agency established by Congress in 1921 to ensure the fiscal and managerial accountability of the federal government...
may audit the Council or anyone working for the Council, and may have access to any information under the control of or used by the Council.
Office of Financial Research
Established as a department within the Treasury
United States Department of the Treasury
The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...
, the Office is tasked with providing administrative, technical, budget analysis and other support services to the Council and its affiliated agencies.
The Director of the Office of Financial Research is appointed for a 6-year term. To the extent that his or her duties are exclusively focused on the Council and the Office of Financial Research, the Director is in effect the executive director of the Council. The Director, in consultation with the Chairman of the Council (who is the Secretary of the Treasury) proposes the annual budget of the Office. The Director may set salaries of the Office’s employees “without regard to chapter 51 or subchapter III of chapter 53 of Title 5 of the United States Code
Title 5 of the United States Code
Title 5 of the United States Code outlines the role of government organization and employees in the United States Code. It also is the Title that specifies Federal holidays .* Part I: The Agencies Generally...
, relating to classification of positions and General Schedule pay rates.”
The Director has Subpoena power and may require from any financial institution (bank or non-bank) any data needed to carry out the functions of the office.
Financial Research Director's Independent Reports to Congress
The Director reports to and testifies before only the Senate Committee on Banking, Housing, and Urban Affairs and the House Committee on Financial Services of the House of Representatives. Testimony shall be annual on the activities of the Office, including the work of the Data Center and the Research and Analysis Center and the assessment of significant financial and market developments and potential emerging threats to the financial stability of the Country. These reports to Congress are independent of any political influence in that "No officer or agency of the United States shall have any authority to require the Director to submit the testimony... for approval, comment, or review prior to the submission of such testimony."
Resources
Like the Council, the Office of Financial Research may request, from department or agency of the United States, "such services, funds, facilities, staff, and other support services as the Office may determine advisable. Any Federal Government employee may be detailed to the Office without reimbursement, and such detail shall be without interruption or loss of civil service status or privilege." Within the Treasury Department, there is a revolving fund, the "Financial Research Fund" into which all appropriations, fees, and assessments that the Office receives are deposited. Surplus funds may be invested. It is contemplated that within 2 years of establishment that the Office will be self-funding.
Authority
The Office has broad latitude in performing support services for both the Council and other Member Agencies, including data collection, applied research and essential long-term research, and developing tools for monitoring risk. The Office can also issue guidelines to standardizing the way data is reported, constituent agencies have three years to implement data standardization guidelines. In many ways, the Office of Financial Research is to be operated without the constraints of the Civil Service system. For example, does not need to follow Federal pay scale guidelines (see above), and it is mandated that the office have:
- Training and Workforce Development Plan that includes training, leadership development and succession planning
- Workplace Flexibility Plan that includes telework, flexible work schedules, job sharing, parental leave benefits and childcare assistance, domestic partner benefits
- Recruitment and Retention Plan
Data and Research & Analysis Centers
The Office is supported by two entities:
- The Data Center, which collects, validates and maintains (and publishes some of) the data required to support the Council; which may be obtained from commercial data providers, publicly available data sources and the financial entities supervised by state and Federal agencies; and
- The Research and Analysis Center, which conducts independent analysis of available information to identify financially destabilizing effects, and develops and maintains independent analytical capabilities and computing resources to:
- Develop and maintain metrics and reporting systems for risks to the financial stability of the United States
- Monitor, investigate, and report on changes in systemwide risk levels and patterns to the Council and Congress
- Conduct, coordinate, and sponsor research to support and improve regulation of financial entities and markets
- Evaluate and report on stress tests or other stability-related evaluations of financial entities overseen by the member agencies
- Maintain expertise in such areas as may be necessary to support specific requests for advice and assistance from financial regulators
- Investigate disruptions and failures in the financial markets, report findings, and make recommendations to the Council based on those findings;
- Conduct studies and provide advice on the impact of policies related to systemic risk; and
- Promote best practices for financial risk management.
Financial Research Fund
The Financial Research Fund is a quasi-revolving fund that the Office uses to fund its operations. All appropriations and assessments are deposited into the Fund; surpluses may be invested. Funds are not subject to apportionment for any other purposes. Within 2-years of enactment, the Office should become self-funding. During the 2-year time following date of enactment, the Federal Reserve shall fund the Office.
Temporary Management Reporting
For a period of five years after enactment, the Office shall submit an annual report to the Senate Committee on Banking, Housing and Urban Affairs, and the House Committee on Financial Services, what amounts to a management report, including:
- Training And Workforce Development Plan – that includes:
- Identification of skill and technical expertise needs and action taken to meet the requirements
- Steps taken to foster innovation and creativity
- Leadership development and succession Planning
- Effective use of technology by employees
- Workplace Flexibility Plan – that includes:
- Telework
- Flexible work schedules
- Phased retirement
- Reemployment annuitants
- Part-time work
- Job sharing
- Parental leave benefits and childcare assistance
- Domestic partner benefits
- Other workplace flexibilities
- Recruitment and Retention Plan – that includes:
- The steps necessary to target highly qualified applicant pools with diverse backgrounds
- Streamlined employment application process
- Timely notification of employment applications
- Measures of hiring effectiveness
Title II – Orderly Liquidation Authority
Securities Investor Protection Corporation
The Securities Investor Protection Corporation is a federally mandated, non-profit, member-funded, corporation in the United States. It protects investors in certain securities from financial harm if a broker-dealer fails...
(SIPC), Covered Financial Companies that may be liquidated under this title include insurance companies and non-bank financial companies not covered elsewhere. Once it is determined that a financial company satisfied the criteria for liquidation, if the financial company's board of directors does not agree, provisions are made for judicial appeal. Some procedures for FDIC and the SIPC to liquidate companies are revised. In addition to the policies and procedures that are in place for the financial institutions covered by FDIC and SIPC, this title provides for the orderly liquidation of other financial institutions. Depending on the type of financial institution, different regulatory organizations may jointly or independently, by 2/3 vote, determine whether a receiver should be appointed for a financial company:
- In General – FDIC and/or the Federal Reserve
- Broker Dealers – SEC and/or the Federal Reserve
- Insurance Companies – Federal Insurance Office (part of the Treasury Department and established in this Act) and/or the Federal Reserve
Provided that the Secretary of Treasury, in consultation with the President may also made a determination to appoint a receiver for a financial company. And the GAO shall review and report to Congress about the Secretary's decision.
When a financial institution is placed into receivership under these provisions, within 24 hours the Secretary shall report to Congress, and within 60 days there shall be a report to the general public. The report on the recommendation to place a financial company into receivership shall contain various details on the state of the company, the impact of its default on the company, and the proposed action.
FDIC Liquidation
- determine that such action is necessary for purposes of the financial stability of the United States, and not for the purpose of preserving the covered financial company
- ensure that the shareholders of a covered financial company do not receive payment until after all other claims and the Fund are fully paid
- ensure that unsecured creditors bear losses in accordance with the priority of claim provisions
- ensure that management responsible for the failed condition of the covered financial company is removed (if such management has not already been removed at the time at which the Corporation is appointed receiver)
- ensure that the members of the board of directors (or body performing similar functions) responsible for the failed condition of the covered financial company are removed, if such members have not already been removed at the time the Corporation is appointed as receiver
- not take an equity interest in or become a shareholder of any covered financial company or any covered subsidiary
Orderly Liquidation Fund
To the extent that the Act expanded the scope of financial firms that may be liquidated by the Federal Government, beyond the existing authorities of the FDIC and SIPC, there needed to be an additional source of funds, independent of the FDIC's Deposit Insurance Fund
Deposit Insurance Fund
The Massachusetts Depositors Insurance Fund was created by the state government of Massachusetts in response to the large number of Massachusetts bank failures during the Great Depression of the 1930s. This fund was the inspiration for the formation of the Federal Deposit Insurance Corporation...
, to be used in case of a non-bank or non-security financial company's liquidation. The Orderly Liquidation Fund is to be an FDIC-managed fund, to be used by the FDIC in the event of a covered financial company's liquidation that is not covered by FDIC or SIPC.
Initially, the Fund is to be capitalized over a period no shorter than five years, but no longer than ten; however, in the event the FDIC must make use of the Fund before it is fully capitalized, the Secretary of the Treasury and the FDIC are permitted to extend the period as determined necessary. The method of capitalization is by collecting risk-based assessment fees on any "eligible financial company" – which is defined as "[…] any bank holding company with total consolidated assets equal to or greater than $50 billion and any nonbank financial company supervised by the Board of Governors." The severity of the assessment fees can be adjusted on an as-needed basis (depending on economic conditions and other similar factors) and the relative size and value of a firm is to play a role in determining the fees to be assessed. The eligibility of a financial company to be subject to the fees is periodically reevaluated; or, in other words, a company that does not qualify for fees in the present, will be subject to the fees in the future if they cross the 50 billion line, or become subject to Federal Reserve scrutiny.
To the extent that a covered financial company has a negative net worth and its liquidation creates an obligation to the FDIC as its liquidator, the FDIC shall charge one or more risk-based assessment such that the obligation will be paid off within 60 months (5 years) of the issuance of the obligation. The assessments will be charged to any bank holding company with consolidated assets greater than $50 billion and any nonbank financial company supervised by the Federal Reserve. Under certain conditions, the assessment may be extended to regulated banks and other financial institutions. Assessments are imposed on a graduated basis, with financial companies having greater assets and risk being assessed at a higher rate.
Assessments will be implemented according to a matrix that the Financial Stability Oversight Council recommends to the FDIC. The matrix shall take into account:
- Economic conditions – higher assessments during more favorable economic conditions
- Whether the institution is:
- An insured depositary institution that is a member of the FDIC
- a member of the SIPC
- an insured credit union
- an insurance company, assessed pursuant to applicable State law to cover costs of rehabilitation or liquidation
- strength of its balance sheet, both on-balance sheet and off-balance sheet assets, and its leverage
- relevant market share
- potential exposure to sudden calls on liquidity precipitated by economic distress with, other financial companies;
- the amount, maturity, volatility, and stability of the liabilities of the company, including the degree of reliance on short-term funding, taking into consideration existing systems for measuring a company’s risk-based capital
- the stability and variety of the company’s sources of funding
- the company’s importance as a source of credit for households, businesses, and State and local governments and as a source of liquidity for the financial system;
- the extent to which assets are simply managed and not owned by the financial company and the extent to which ownership of assets under management is diffuse
- the amount, different categories, and concentrations of liabilities, both insured and uninsured, contingent and non-contingent, including both on-balance sheet and off-balance sheet liabilities, of the financial company and its affiliates
Obligation limit and funding
When liquidating a financial company under this title (as opposed to FDIC or SIPD) there is a maximum limit of the Government's liquidation obligation, i.e., the Government's obligation can not exceed:
- 10% of the total consolidated assets, or
- 90% of the fair value of the total consolidated assets
In the event that the Fund and other sources of capital are insufficient, the FDIC is authorized to buy and sell securities on behalf of the company (or companies) in receivership to raise additional capital. Taxpayers shall bear no losses from liquidating any financial company under this title and any losses shall be the responsibility of the financial sector, recovered through assessments:
- Liquidation is Required for all financial companies put into receivership under this title
- All funds expended in the liquidation of a financial company under this title shall be recovered from the disposition of assets or assessments on the financial sector
Orderly Liquidation Authority Panel
Established inside the United States Bankruptcy Court
United States bankruptcy court
United States bankruptcy courts are courts created under Article I of the United States Constitution. They function as units of the district courts and have subject-matter jurisdiction over bankruptcy cases. The federal district courts have original and exclusive jurisdiction over all cases arising...
for the District of Delaware, the Panel is tasked with evaluating the conclusion of the Secretary of the Treasury that a company is in (or in danger of) default. The Panel consists of three bankruptcy judges drawn from the District of Delaware, all of whom are appointed by the Chief Judge of the United States Bankruptcy Court for the District of Delaware. In his appointments, the Chief Judge is instructed to weigh the financial expertise of the candidates. If the Panel concurs with the Secretary, the company in question is permitted to be placed into receivership
Receivership
In law, receivership is the situation in which an institution or enterprise is being held by a receiver, a person "placed in the custodial responsibility for the property of others, including tangible and intangible assets and rights." The receivership remedy is an equitable remedy that emerged in...
; if they do not concur, the Secretary has an opportunity to amend and refile his or her petition. In the event that a Panel decision is appealed, the United States Court of Appeals for the Third Circuit
United States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
has jurisdiction; in the event of further appeal, a writ of certiorari may be filed with the United States Supreme Court. In all appellate events, the scope of review is limited to whether the decision of the Secretary that a company is in (or in danger of) default is supported by substantial evidence.
Title III – Transfer of Powers to the Comptroller, the FDIC, and the Fed
Title III, or the "Enhancing Financial Institution Safety and Soundness Act of 2010" is intended to streamline banking regulation and reduce competition and overlaps between different regulators by abolishing the Office of Thrift SupervisionOffice of Thrift Supervision
The Office of Thrift Supervision was a United States federal agency under the Department of the Treasury that charters, supervises, and regulates all federally- and state-chartered savings banks and savings and loans associations. It was created in 1989 as a renamed version of another federal agency...
and transferring its power over the appropriate holding companies to the Board of Governors of the Federal Reserve System
Federal Reserve System
The Federal Reserve System is the central banking system of the United States. It was created on December 23, 1913 with the enactment of the Federal Reserve Act, largely in response to a series of financial panics, particularly a severe panic in 1907...
, state savings associations to the FDIC, and other thrifts to the Office of the Comptroller of the Currency. The thrift charter is to remain, although weakened. Additional changes include:
- The amount of deposits insured by the FDIC and the National Credit Union Share Insurance FundNational Credit Union Share Insurance FundThe National Credit Union Share Insurance Fund is administered by the National Credit Union Administration for the purpose of providing deposit insurance to protect deposits of credit union members at insured institutions in the United States. It was created in 1970 shortly after the creation of...
(NCUSIF) is permanently increased from $100,000 to $250,000. - Each of the financial regulatory agencies represented on the Council shall establish an Office of Minority and Women Inclusion that shall be responsible for all matters of the agency relating to diversity in management, employment, and business activities.
Title IV – Regulation of Advisers to Hedge Funds and Others
Title IV introduces significant regulation of hedge fundHedge fund
A hedge fund is a private pool of capital actively managed by an investment adviser. Hedge funds are only open for investment to a limited number of accredited or qualified investors who meet criteria set by regulators. These investors can be institutions, such as pension funds, university...
s, and other similar investment intermediaries for the first time, and is known severally as the "Private Fund Investment Advisers Registration Act of 2010". In general, it increases the reporting requirements of investment advisors, and limits the ability of these advisors to exclude information in reporting to the various Federal government agencies. However, there is an exemption in reporting for Venture Capital Fund Advisors, certain advisors with assets under management
Assets under management
Assets under management is a financial term used denote the market value of funds being managed by a financial instutition on behalf of its clients, investors, depositors, etc. This metric is a sign of size and success against competition...
under $150 million, and family offices (as defined by the Commission). The Act changes the definition of accredited investor
Accredited investor
Accredited investor is a term defined by various securities laws that delineates investors permitted to invest in certain types of higher risk investments including seed money, limited partnerships, hedge funds, and angel investor networks...
, which means someone with personal or (joint with spouse) net worth over a 4-year period, that averages more than $1 million, to exclude the value of the person's residence from the calculation. The Commission is allowed to adjust this value with time. The Act also provides that the SEC shall, every five years, adjust for the effects of inflation, that any factor used in rule or regulation be in multiples of $100,000.
Studies required under this title include:
- a study from the GAO on the appropriate criteria for determining the financial thresholds or other criteria needed to qualify for accredited investor, within 3 years;
- from the GAO, a study of the feasibility of forming a self-regulatory organization for private funds, within 1 year;
- from the SEC, a study of short-selling, including feasibility, benefits and costs of real-time short sale publications, as well as a voluntary pilot program for reporting.
Title V – Insurance
Subtitle A: Federal Insurance OfficeSubtitle A, also called the "Federal Insurance Office Act of 2010", establishes within the Department of the Treasury the Federal Insurance Office which is tasked with:
- Monitoring all aspects of the insurance industry (except health insurance, some long-term care insurance, and crop insurance), including the identification of gaps in regulation of insurers that could contribute to financial crisis
- Monitoring the extent to which traditionally underserved communities and consumers, minorities, and low-and moderate-income persons have access to affordable insurance (except health insurance)
- Making recommendations to the Financial Stability Oversight Council about insurers which may pose a risk, and to help any state regulators with national issues
- Administering the Terrorism Insurance Program
- Coordinating international insurance matters
- Determining whether State insurance measure are preempted by covered agreements (states may have more stringent requirements)
- Consulting with the States (including State insurance regulators) regarding insurance matters of national importance and prudential insurance matters of international importance;
The Office is headed by a director who is appointed for a career-reserved term by the Secretary of the Treasury.
In general, the Insurance Office may require any insurer company to submit such data as may be reasonably required in carrying out the functions of the Office.
A State insurance measure shall be preempted if, and only to the extent that the Director determines that the measure results in a less favorable treatment of a non-US insurer whose parent corporation is located in a country with an agreement or treaty with the United States.
Subtitle B: State-Based Insurance Reform
Subtitle B, also called the "Nonadmitted and Reinsurance Reform Act of 2010" says the States may enter into a compact to establish procedures to allocate among the States the premium taxes paid to an insured's home State. After 2-years, a State may not collect any "fees relating to licensing of an individual or entity as a surplus lines broker in the State unless the State has in effect at such time laws or regulations that provide for participation by the State in the national insurance producer database."
Title VI – Improvements to Regulation
ProvisionsTitle VI is also called the "Bank and Savings Association Holding Company and Depository Institution Regulatory Improvements Act of 2010". It introduces the so called "Volcker Rule
Volcker Rule
The Volcker Rule is a specific section of the Dodd–Frank Wall Street Reform and Consumer Protection Act originally proposed by American economist and former United States Federal Reserve Chairman Paul Volcker to restrict United States banks from making certain kinds of speculative investments that...
" after former Chairman of the Federal Reserve
Chairman of the Federal Reserve
The Chairman of the Board of Governors of the Federal Reserve System is the head of the central banking system of the United States. Known colloquially as "Chairman of the Fed," or in market circles "Fed Chairman" or "Fed Chief"...
Paul Volcker
Paul Volcker
Paul Adolph Volcker, Jr. is an American economist. He was the Chairman of the Federal Reserve under United States Presidents Jimmy Carter and Ronald Reagan from August 1979 to August 1987. He is widely credited with ending the high levels of inflation seen in the United States in the 1970s and...
by amending the Bank Holding Company Act of 1956
Bank Holding Company Act of 1956
The Bank Holding Company Act of 1956 is a United States Act of Congress that regulates the actions of bank holding companies.The original law , specified that the Federal Reserve Board of Governors must approve the establishment of a bank holding company, and prohibited bank holding companies...
. With the aim of reducing the amount of speculative investments on large firms' balance sheets, it limits banking entities to owning no more in a hedge fund or private equity fund
Private equity fund
A private equity fund is a collective investment scheme used for making investments in various equity securities according to one of the investment strategies associated with private equity....
than 3% of the total ownership interest. The total of all of the banking entity’s interests in hedge funds or private equity funds cannot exceed 3% of the Tier 1 capital of the banking entity. Furthermore no bank that has a direct or indirect relationship with a hedge fund or private equity fund, "may enter into a transaction with the fund, or with any other hedge fund or private equity fund that is controlled by such fund" without disclosing the full extent of the relationship to the regulating entity, and assuring that there are no conflicts of interest, “Banking entity” includes an insured depository institution, any company controlling an insured depository institution and such a company’s affiliates and subsidiaries, and must comply with the Act within two years of its passing, although it may apply for time extensions.
The rule distinguishes transactions by banking entities from transactions by nonbank financial companies supervised by the Federal Reserve Board. The rule states that in general, "an insured depository institution may not purchase an asset from, or sell an asset to, an executive officer, director, or principal shareholder of the insured depository institution, or any related interest of such person… unless— the transaction is on market terms; and if the transaction represents more than 10 percent of the capital stock and surplus of the insured depository institution, the transaction has been approved in advance by a majority of the members of the board of directors of the insured depository institution who do not have an interest in the transaction." Providing for the regulation of capital, the Volcker Rule says that regulators are required to impose upon institutions capital requirements that are "countercyclical, so that the amount of capital required to be maintained by a company increases in times of economic expansion and decreases in times of economic contraction," to ensure the safety and soundness of the organization. The rule also provides that an insured State bank may engage in a derivative transaction only if the law with respect to lending limits of the State in which the insured State bank is chartered takes into consideration credit exposure to derivative transactions. The title provides for a three year moratorium on approval of FDIC deposit insurance received after November 23, 2009, for an industrial bank, a credit card bank, or a trust bank that is directly or indirectly owned or controlled by a commercial firm.
Background
The Volcker Rule was first publicly endorsed by President Obama on January 21, 2010. The final version of the Act prepared by the conference committee included a strengthened Volcker rule by including language by Senators Jeff Merkley
Jeff Merkley
Jeffrey Alan "Jeff" Merkley is the junior United States Senator from Oregon. A member of the Democratic Party, Merkley was a five-term member of the Oregon Legislative Assembly representing House District 47, located in eastern Multnomah County within the Portland city limits...
, D-Oregon, and Carl Levin
Carl Levin
Carl Milton Levin is a Jewish-American United States Senator from Michigan, serving since 1979. He is the Chairman of the Senate Committee on Armed Services. He is a member of the Democratic Party....
, D-Michigan, that covers a greater range of proprietary trading than originally proposed by the administration, with the notable exceptions of trading in U.S. government securities and bonds issued by government-backed entities, and the rule also bans conflict of interest trading. The rule seeks to ensure that banking organizations are both well capitalized and well managed. The proposed draft form of the Vocker Rule was presented by regulators for public comment on October 11, 2011, with the rule due to go into effect on July 21, 2012.
Title VII – Wall Street Transparency and Accountability
Credit derivative
In finance, a credit derivative is a securitized derivative whose value is derived from the credit risk on an underlying bond, loan or any other financial asset. In this way, the credit risk is on an entity other than the counterparties to the transaction itself...
that were the subject of several bank failures circa. 2007. Financial instruments have the meanings given the terms in section 1a of the Commodity Exchange Act
Commodity Exchange Act
Commodity Exchange Act is a federal act passed in 1936 by the U.S. Government ....
. On a broader level, the Act requires that various derivatives known as swaps
Swap (finance)
In finance, a swap is a derivative in which counterparties exchange certain benefits of one party's financial instrument for those of the other party's financial instrument. The benefits in question depend on the type of financial instruments involved...
, which are traded over the counter
Over-the-counter (finance)
Within the derivatives markets, many products are traded through exchanges. An exchange has the benefit of facilitating liquidity and also mitigates all credit risk concerning the default of a member of the exchange. Products traded on the exchange must be well standardised to transparent trading....
be cleared through exchanges or clearinghouse
Clearing house (finance)
A clearing house is a financial institution that provides clearing and settlement services for financial and commodities derivatives and securities transactions...
s.
The Commodity Futures Trading Commission
Commodity Futures Trading Commission
The U.S. Commodity Futures Trading Commission is an independent agency of the United States government that regulates futures and option markets....
(CFTC) and the Securities and Exchange Commission (SEC) both regulate derivatives known as swaps under the Act, but the SEC has authority over "security-based swaps". The Act repeals exemption from regulation for security-based swaps under the Gramm–Leach–Bliley Act The regulators are required to consult with each other before implementing any rule-making or issuing orders regarding several different types of security swaps. The CFTC and SEC, in consultation with the Federal Reserve are charged with further defining swap related terms that appear in Commodity Exchange Act
Commodity Exchange Act
Commodity Exchange Act is a federal act passed in 1936 by the U.S. Government ....
and section 3(a)(78) of the Securities Exchange Act of 1934
Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
.
The title provides that, "Except as provided otherwise, no Federal assistance may be provided to any swaps entity with respect to any swap, security-based swap, or other activity of the swaps entity." An "Interagency Group" is constituted to the oversight of existing and prospective carbon markets to ensure an efficient, secure, and transparent carbon market, including oversight of spot markets and derivative markets.
Title VIII – Payment, Clearing and Settlement Supervision
Title VIII, called the "Payment, Clearing, and Settlement Supervision Act of 2010", aims to mitigate systemic risk within and promote stability in the financial system by tasking the Federal Reserve to create uniform standards for the management of risks by systemically important financial organizations and institutions by providing the Fed with an "enhanced role in the supervision of risk management standards for systemically important financial market utilities; strengthening the liquidity of systemically important financial market utilities; and providing the Board of Governors an enhanced role in the supervision of risk management standards for systemically important payment, clearing, and settlement activities by financial institutions."Title IX – Investor Protections and Improvements to the Regulation of Securities
Title IX, sections 901 to 991, known as the "Investor Protections and Improvements to the Regulation of Securities", revises the powers and structure of the Securities and Exchange Commission, credit rating organizations, and the relationships between customers and broker-dealerBroker-dealer
A broker-dealer is a term used in United States financial services regulations. It is a natural person, a company or other organization that trades securities for its own account or on behalf of its customers....
s or investment advisers. This title calls for various studies and reports from the SEC and Government Accountability Office
Government Accountability Office
The Government Accountability Office is the audit, evaluation, and investigative arm of the United States Congress. It is located in the legislative branch of the United States government.-History:...
(GAO). This title contains nine subtitles.
Subtitle A – Increasing Investor Protection
Subtitle A contains provisions:
- To prevent regulatory captureRegulatory captureIn economics, regulatory capture occurs when a state regulatory agency created to act in the public interest instead advances the commercial or special interests that dominate the industry or sector it is charged with regulating. Regulatory capture is a form of government failure, as it can act as...
within the SEC and increase the influence of investors, the Act creates an Office of the Investor Advocate, an Investor Advisory Committee composed of 12–22 members of whom serve 4-year terms, and an ombudsmanOmbudsmanAn ombudsman is a person who acts as a trusted intermediary between an organization and some internal or external constituency while representing not only but mostly the broad scope of constituent interests...
appointed by the Office of the Investor Advocate. The Investor Advisory Committee was actually created in 2009 and therefore predates the passage of the Act, but it is specifically authorized under the Act. - SEC is specifically authorized to issue "point-of-sale disclosure" rules when retail investors purchase investment products or services; these disclosures include concise information on costs, risks, and conflicts of interest. This authorization follows up the SEC's failure to implement proposed point-of-sale disclosure rules in 2004 and 2005; These proposed rules generated opposition because they were perceived as burdensome to broker-dealers. For example, they would require oral disclosures for telephone transactions, were not satisfied by cheap internet or email disclosures, and could allow the customer to request disclosures specific to the amount of their investment. In determining the disclosure rules, the Act authorizes the SEC to do "investor testing" and rely on experts to study financial literacy among retail investors.
Subtitle A provides authority for the SEC to impose regulations requiring "fiduciary duty" by broker-dealers and investment advisers to their customers. Although the Act does not create such a duty immediately, the Act authorizes the SEC to establish such a standard and requires that the SEC study the standards of care which broker-dealers and investment advisers apply to their customers and report to Congress on the results within 6 months. Under the law, commission and limited product range would not violate the duty and broker-dealers would not have a continuing duty after the investment advice is given.
Subtitle B – Increasing Regulatory Enforcement and Remedies
Subtitle B gives the SEC further powers of enforcement. This includes a "whistleblower bounty program" which is based upon a similar program established by the IRS in 2006; the program allows persons who provide information which leads to a successful SEC enforcement to receive 10 to 30% of the monetary sanctions over $1 million. Section 921 under the title allows the SEC to prohibit pre-dispute mandatory binding arbitration. Section 929I exempts the SEC from disclosing information obtained pursuant to 17(b) of the Securities Exchange Act of 1934
Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
or information "based upon or derived from" such information "obtained by the Commission for use in furtherance of the purposes of this title, including surveillance, risk assessments, or other regulatory and oversight activities" – meaning information derived from examinations. The SEC rejected a Freedom of Information Act request on July 27, 2010 based upon this new law; while the SEC has stated that this legal change is necessary for registrants to comply with the examinations, the provision has been criticized for allowing the SEC to avoid the typical disclosure rules applicable to federal agencies.
Importantly, section 921I amends SEC Act of 1934 and the Investment Company Act of 1940 to allow the Securities Exchange Commission to not disclose records or information that have been obtained for uses such as “surveillance, risk assessments, or other regulatory and oversight activities” except it may not withhold information from judicial or congressional inquiry. The effective result of this change is that the US Freedom of Information Act
Freedom of information in the United States
Freedom of information in the United States refers to the independent bodies of Freedom of information legislation at the federal level and in the fifty states.-Federal level:...
no longer applies to the SEC; the SEC can refuse to supply documents it deems as being part of its regulatory and oversight activities. Previously, the SEC used a narrower existing exemption for trade secrets when refusing Freedom of Information Requests.
Subtitle C – Improvements to the Regulation of Credit Rating Agencies
Recognizing credit ratings issued by credit rating agencies, including nationally recognized statistical rating organizations (NRSROs), are matters of national public interest, that credit rating agencies are critical “gatekeepers” in the debt market central to capital formation, investor confidence, and the efficient performance of the United States economy, Congress expanded regulation of credit rating agencies.
Subtitle C cites findings of conflicts of interest and inaccuracies during the recent financial crisis contributed significantly to the mismanagement of risks by financial institutions and investors which in turn adversely impacted the health of the United States economy as factors necessitating increased accountability and transparency by credit rating agencies.
Subtitle C mandates the creation by the SEC of an Office of Credit Ratings (OCR) to provide oversight over NRSROs and enhanced regulation of such entities.
Securities and Exchange Commission
Subtitle C grants authority to the Commission to temporarily suspend or permanently revoke the registration of an NRSRO with respect to a particular class or subclass of securities if after notice and hearing the NRSRO lacks the resources to produce credit ratings with integrity. Additional key provisions of the Act are:
- The Commission shall prescribe rules with respect to credit rating procedures and methodologies.
- OCR is required to conduct an examination of each NRSRO at least annually and shall produce a public inspection report.
- To facilitate transparency of credit ratings performance, the Commission shall require NRSROs to publicly disclose information on initial and revised credit ratings issued, including the credit rating methodology utilized and data relied on, to enable users to evaluate NRSROs.
Nationally Recognized Statistical Rating Organizations
Enhanced regulations of credit rating agencies include:
- NRSROs are required to establish, maintain, enforce and document an effective internal control structure governing the implementation of and adherence to policies, procedures, and methodologies for determining credit ratings.
- Submit to the OCR an annual internal control report.
- Adhere to rules established by the Commission to prevent sales and marketing considerations from influencing the ratings issued by a NRSRO.
- Policies and procedures with regard to (1) certain employment transitions to avoid conflicts of interest, (2) the processing of complaints regarding NRSRO noncompliance, and (3) notification to users of identified significant errors are required.
- Compensation of the compliance officer may not be linked to the financial performance of the NRSRO.
- The duty to report to appropriate authorities credible allegations of unlawful conduct by issuers of securities.
- The consideration of credible information about an issuer from sources other than the issuer or underwriter which is potentially significant to a rating decision.
- The Act establishes corporate governance, organizational, and management of conflict of interest guidelines. A minimum of 2 independent directors is required.
In addition, Subtitle C requires the SEC to conduct a study on strengthening NRSRO independence and recommends the SEC utilize its rulemaking authority to establish guidelines to prevent improper conflicts of interest arising from the performance of services unrelated to the issuance of credit ratings such as consulting, advisory, and other services. The Act requires the Comptroller General of the United States to conduct a study on alternative business models for compensating NRSROs
Subtitle D – Improvements to the Asset-Backed Securitization Process
In Subtitle D, the term “Asset-Backed Security” is defined as a fixed-income or other security collateralized by any type of self-liquidating financial asset, such as a loan, lease, mortgage, that allows the owner of the Asset-Backed Security to receive payments that depend on the cash flow of the (ex.) loan. For regulation purposes, Asset-Backed Securities are described as including (but not limited to):
- collateralized mortgage obligation
- collateralized debt obligation
- collateralized bond obligation
- collateralized debt obligation of asset-backed securities
- collateralized debt obligation of collateralized debt obligations
For regulation purposes, Asset-Backed Securities do not include securities issued by a finance subsidiary to its parent company or company controlled by the parent company. Within nine months of enactment, rules and regulations are to be issued regarding requiring any securitizer to retain an economic interest in a portion of the credit risk. Regulations for assets that are):
- Residential in Nature – are jointly prescribed by the SEC, the Secretary of Housing and Urban Development, and the Federal Housing Finance Agency
- In General – the Federal Banking agencies and the SEC
Specifically, securitizers are:
- prohibited from hedging or transferring the credit risk it is required to retain with respect to the assets
- required to retain not less than 5% of the credit risk for an asset that is not a qualified residential mortgage,
- for commercial mortgages or other types of assets, regulations may provide for retention of less than 5% of the credit risk, provided that there is also disclosure
The regulations are to prescribe several asset classes with separate rules for securitizers, including but not limited to, residential mortgages, commercial mortgages, commercial loans, and auto loans. The SEC and the Federal banking agencies may jointly issue exemptions, exceptions, and adjustments to the rules issues provided that they:
- help ensure high quality underwriting standards for the securitizers and originators of assets that are securitized or available for securitization
- encourage appropriate risk management practices by the securitizers and originators of assets, improve the access of consumers and businesses to credit on reasonable terms, or otherwise be in the public interest and for the protection of investors.
Additionally, the following institutions and programs are exempt:
- Farm Credit System
- Qualified Residential Mortgages (which are to be jointly defined by The Federal banking agencies, SEC, Secretary of Housing and Urban Development, and the Director of the Federal Housing Finance Agency)
The SEC may classify issuers and prescribe requirements appropriate for each class of issuers of asset-backed securities. The SEC shall also adopt regulations requiring each issuer of an asset-backed security to disclose, for each tranche
Tranche
In structured finance, a tranche is one of a number of related securities offered as part of the same transaction. The word tranche is French for slice, section, series, or portion, and is cognate to English trench . In the financial sense of the word, each bond is a different slice of the deal's...
or class of security, information that will help identify each asset backing that security. Within six months of enactment, the SEC shall issue regulations prescribing representations and warranties in the marketing of asset-backed securities:
- require each Nationally Recognized Statistical Rating OrganizationNationally Recognized Statistical Rating OrganizationA Nationally Recognized Statistical Rating Organization is a credit rating agency that issues credit ratings that the U.S. Securities and Exchange Commission permits other financial firms to use for certain regulatory purposes...
to include in any report accompanying a credit rating a description of:- the representations, warranties, and enforcement mechanisms available to investors
- how they differ from the representations, warranties, and enforcement mechanisms in issuances of similar securities
- require any securitizer to disclose fulfilled and unfulfilled repurchase requests across all trusts aggregated by the securitizer, so that investors may identify asset originators with clear underwriting deficiencies.
The SEC shall also prescribe a Due Diligence
Due diligence
"Due diligence" is a term used for a number of concepts involving either an investigation of a business or person prior to signing a contract, or an act with a certain standard of care. It can be a legal obligation, but the term will more commonly apply to voluntary investigations...
analysis/review of the assets underlying the security, and a disclosure of that analysis.
Subtitle E – Accountability and Executive Compensation
Within one year of enactment, the SEC must issue rules that direct the national securities exchanges and associations to prohibit the listing of any security of an issuer that is not in compliance with the requirements of the compensation sections. At least once every 3 years, a public corporation is required to submit to a shareholder vote the approval of executive compensation. And once every six years there should be a submitted to shareholder vote whether the required approval of executive compensation should be more often that once every three years. Shareholders may disapprove any Golden Parachute
Golden parachute
A golden parachute is an agreement between a company and an employee specifying that the employee will receive certain significant benefits if employment is terminated. Sometimes, certain conditions, typically a change in company ownership, must be met, but often the cause of termination is...
compensation to executives via a non-binding vote. Shareholders must be informed of the relationship between executive compensation actually paid and the financial performance of the issuer, taking into account any change in the value of the shares of stock and dividends of the issuer and any distributions as well as:
- the median of the annual total compensation of all employees of the issuer, except the chief executive officer (or any equivalent position)
- the annual total compensation of the chief executive officer, or any equivalent position
- the ratio of the amount of the medium of the annual total with the total CEO compensation
The company shall also disclose to shareholders whether any employee or member of the board of directors is permitted to purchase financial instruments that are designed to hedge or offset any decrease in the market value of equity securities that are part of a compensation package. Members of the Board of Director’s Compensation Committee shall be an independent member of the board of directors, a compensation consultant or legal council, as provided by rules issued by the SEC. Federal regulators, within 9 months of enactment of this legislation, shall proscribe regulations that a covered company shall disclose to the appropriate Federal regulator, all incentive-based compensation arrangements with sufficient information such that the regulator may determine:
- whether the compensation package could lead to material financial loss to the company
- provides the employee/officer with excessive compensation, fees, or benefits
Subtitle F – Improvements to the Management of the Securities and Exchange Commission
Within Subtitle F are various managerial changes intended to increase the efficiency of the agency will be implemented, including reports on internal control
Internal control
In accounting and auditing, internal control is defined as a process effected by an organization's structure, work and authority flows, people and management information systems, designed to help the organization accomplish specific goals or objectives. It is a means by which an organization's...
s, a triennial report on personnel management by the head of the GAO (the Comptroller General of the United States
Comptroller General of the United States
The Comptroller General of the United States is the director of the Government Accountability Office , a legislative branch agency established by Congress in 1921 to ensure the fiscal and managerial accountability of the federal government...
), a hotline for employees to report problems in the agency, a report by the GAO on the oversight of National Securities Associations, and a report by a consultant on reform of the SEC. Under Subtitle J of the title, the SEC will be funded through "match funding" which will in effect mean that its budget will be funded through filing fees.
Subtitle G – Strengthening Corporate Governance
Subtitle G provides that the SEC may issue rules and regulations that include a requirement that permit a shareholder to use a company’s proxy solicitation materials for the purpose of nominating individuals to membership on the board of directors. The company is also required to inform investors the reason why the same person is to serve as chairman of the board of directors and chief executive officer, or why different individuals are to serve as chairman of the board of directors and chief executive officer.
Subtitles H – Municipal Securities
This provision of the statute creates a guarantee of trust which correlates a municipal advisor (who provide advice to state and local governments regarding investments) with any municipal bodies which provides services. Also it alters the make-up of the Municipal Securities Rulemaking Board ("MSRB") and mandates that the Comptroller General conducts studies relating to municipal disclosure and municipal markets. The new MSRB will be composed of fifteen individuals, have the authority to regulate municipal advisors, and be permitted to charge fees regarding trade information. Also, it is mandated that the Comptroller General makes several recommendations, which must be submitted to Congress within at most 24 months of enactment of the Act.
Subtitle I – Public Company Accounting Oversight Board, Portfolio Margining, and Other Matters
Subtitle I is concerned with the establishment of a Public Company Accounting Oversight Board (or PCAOB). The PCAOB has the authority to establish oversight of certified public accounting firms. The Subtitle I provision allows the SEC to authorize necessary rules with respect to securities for borrowing. The SEC shall, as deemed appropriate, exercise transparency within this sector of the financial industry. A council of Inspectors General On Financial Oversight, consisting of several members of federal agencies (such as the United States Department of the Treasury
United States Department of the Treasury
The Department of the Treasury is an executive department and the treasury of the United States federal government. It was established by an Act of Congress in 1789 to manage government revenue...
, the FDIC
Federal Deposit Insurance Corporation
The Federal Deposit Insurance Corporation is a United States government corporation created by the Glass–Steagall Act of 1933. It provides deposit insurance, which guarantees the safety of deposits in member banks, currently up to $250,000 per depositor per bank. , the FDIC insures deposits at...
, and the Federal Housing Finance Agency
Federal Housing Finance Agency
The Federal Housing Finance Agency is an independent federal agency created as the successor regulatory agency resulting from the statutory merger of the Federal Housing Finance Board , the Office of Federal Housing Enterprise Oversight , and the U.S...
) will be established. The council will more easily allow the sharing of data with inspectors general (which includes members by proxy
Proxy
Proxy may refer to:* Proxy abuse , abuse committed on behalf of somebody else* Proxy bullying , bullying committed on behalf of somebody else...
or in person from the SEC and CFTC
Commodity Futures Trading Commission
The U.S. Commodity Futures Trading Commission is an independent agency of the United States government that regulates futures and option markets....
) with a focus on dealings which may be applicable to the general financial sector at large with focus on the improvement of financial oversight.
Subtitle J – Securities and Exchange Commission Match Funding
Title X – Bureau of Consumer Financial Protection
Title X establishes the Bureau of Consumer Financial Protection, within the Federal Reserve. The new Bureau regulates consumer financial products and services in compliance with federal law. The Bureau is headed by a director who is appointed by the President, with the advice and consent of the Senate, for a term of five years. The Bureau is subject to financial audit by the GAO, and must report to the Senate Banking Committee and the House Financial Services CommitteeUnited States House Committee on Financial Services
The United States House Committee on Financial Services is the committee of the United States House of Representatives that oversees the entire financial services industry, including the securities, insurance, banking, and housing industries...
bi-annually. The Financial Stability Oversight Council
Financial Stability Oversight Council
The Financial Stability Oversight Council is a United States Federal government organization, established by Title I of the Dodd–Frank Wall Street Reform and Consumer Protection Act, which was signed into law by President Barack Obama on July 21, 2010. Dodd-Frank provides the Council with broad...
may issue a "stay" to the Bureau with an appealable 2/3 vote. Even though the Bureau is placed within the Fed, it operates independently. The Fed is prohibited from interfering with matters before the Director, directing any employee of the Bureau, modifying the functions and responsibilities of the Bureau or impeding an order of the Bureau. The Bureau is separated into five units:
- Research
- Community Affairs
- Complaint Tracking and Collection
- Office of Fair Lending and Equal Opportunity – ensuring equitable access to credit
- Office of Financial Literacy – promoting financial literacy among consumers
Within the Bureau, a new Consumer Advisory Board assists the Bureau and informs it of emerging market trends. This Board is appointed by the Director of the Bureau, with at least six members recommended by regional Fed Presidents. Elizabeth Warren
Elizabeth Warren
Elizabeth Warren is an American bankruptcy expert, policy advocate, Harvard Law School professor, and Democratic Party candidate in the 2012 United States Senate election in Massachusetts. She has written several academic and popular books concerning the American economy and personal finance. She...
was the first appointee of the President as an adviser to get the Bureau running. The Consumer Financial Protection Bureau can be found on the web.
The Bureau was formally established when Dodd–Frank was enacted, on July 21, 2010. It will obtain enforcement authority under the Enumerated Consumer Laws and begin most activities on the Designated Transfer Date, however, which is currently set for July 21, 2011.
Governance and oversight
- serves in the absence of the Chairman,
- is responsible for developing policy recommendations to the Board regarding supervision and regulation of financial institution supervised by the Board,
- oversees the supervision and regulation of such firms, and
- reports to Congress on a semiannual basis to disclose their activities and efforts, testifying before Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Financial Services of the House of Representatives
Additionally, the GAO is now required to perform several different audits of the Fed:
- A one-time audit of any emergency lending facility established by the Fed since December 1, 2007 and ending with the date of enactment of this Act
- A Federal Reserve Governance Audit that shall examine:
- The extent to which the current system of appointing Federal reserve bank directors represents "the public, without discrimination on the basis of race, creed, color, sex or national origin, and with due but not exclusive consideration to the interests of agriculture, commerce, industry, services, labor, and consumers"
- Whether there are actual or potential conflicts of interest
- Examine each facilities operation
- Identify changes to selection procedures for Federal reserve bank directors or to other aspects of governance that would improve public representation and increase the availability of monetary information
Standards, Plans & reports, and off-balance-sheet activities
The Fed is required to establish prudent standards for the institutions they supervise that include:- Risk-Based Capital Requirements and Leverage Limits
- Liquidity requirements;
- Overall risk management requirements;
- Resolution plan and credit exposure report requirements; and
- Concentration limits.
The Fed may establish additional standards that include, but are not limited to:
- A contingent capital requirement
- Enhanced public disclosure
- Short-term debt limits
The Fed may require supervised companies to "maintain a minimum amount of contingent capital that is convertible to equity in times of financial stress."
Title XI requires companies supervised by the Fed to periodically provide additional plans and reports, including:"
- A plan for a rapid and orderly liquidation of the company in the event of material financial distress or failure,
- A credit exposure report describing the nature to which the company has exposure to other companies, and credit exposure can not exceed 25% of the capital stock and surplus of the company ."
The title requires that in determining capital requirements for regulated organizations, off-balance-sheet activities shall be taken into consideration, being those things that create an accounting liability such as, but not limited to:"
- Direct credit substitutes in which a bank substitutes its own credit for a third party, including standby letters of credit.
- Irrevocable letters of credit that guarantee repayment of commercial paper or tax-exempt securities.
- Risk participations in bankers’ acceptances.
- Sale and repurchase agreements.
- Asset sales with recourse against the seller.
- Interest rate swaps.
- Credit swaps.
- Commodities contracts.
- Forward contracts.
- Securities contracts.
Title XII – Improving Access to Mainstream Financial Institutions
Title XII, known as the "Improving Access to Mainstream Financial Institutions Act of 2010", provides incentives that encourage low- and medium-income people to participate in the financial systems. Organizations that are eligible to provide these incentives are 501(c)(3) and tax exempt organizations, federally insured depository institutions, community development financial institutionCommunity development financial institution
Community development financial institutions are financial institutions which provide credit and financial services to underserved markets and populations, primarily in the USA but also in the UK...
, State, local or tribal governments. Multi-year programs for grants, cooperative agreements, etc. are also available.
- to enable low- and moderate-income individuals to establish one or more accounts in a federal insured bank
- make micro loans, typically under $2,500
- provide financial education and counseling
Title XIII – Pay It Back Act
This title amends the Emergency Economic Stabilization Act of 2008Emergency Economic Stabilization Act of 2008
The Emergency Economic Stabilization Act of 2008 The Emergency Economic Stabilization Act of 2008 The Emergency Economic Stabilization Act of 2008 (Division A of , commonly referred to as a bailout of the U.S. financial system, is a law enacted in response to the subprime mortgage crisis...
to limit the Troubled Asset Relief Program, by reducing the funds available by $225 billion (from $700 billion to $475 billion) and further mandating that unused funds can not be used for any new programs.
Amendments to the Housing and Economic Recovery Act of 2008
Housing and Economic Recovery Act of 2008
The Housing and Economic Recovery Act of 2008 designed primarily to address the subprime mortgage crisis. It authorized the Federal Housing Administration to guarantee up to $300 billion in new 30-year fixed rate mortgages for subprime borrowers if lenders write-down principal loan balances to 90...
and other sections of the Federal code to specify that any proceeds from the sale of securities purchased to help stabilize the financial system shall be:
- dedicated for the sole purpose of deficit reduction
- prohibited from use as an offset for other spending increases or revenue reductions
The same conditions apply for any funds not used by the state under the American Recovery and Reinvestment Act of 2009
American Recovery and Reinvestment Act of 2009
The American Recovery and Reinvestment Act of 2009, abbreviated ARRA and commonly referred to as the Stimulus or The Recovery Act, is an economic stimulus package enacted by the 111th United States Congress in February 2009 and signed into law on February 17, 2009, by President Barack Obama.To...
by December 31, 2012, provided that the President may waive these requirements if it is determined to be in the best interest of the nation.
Title XIV – Mortgage Reform and Anti-Predatory Lending Act
Title XIV is called the Mortgage Reform and Anti-Predatory Lending Act, whose subtitles A, B, C, and E are designated as Enumerated Consumer Law, which will be administered by the new Bureau of Consumer Financial Protection. The section focuses on standardizing data collection for underwriting and imposes obligations on mortgage originators to only lend to borrowers who are likely to repay their loans.Subtitle A – Residential Mortgage Loan Organization Standards
A "Residential Mortgage Originator" is defined as any person who either receives compensation for or represents to the public that they will take a residential loan application, assist a consumer in obtaining a loan, or negotiate terms for a loan. A residential Mortgage Originator is not a person who provides financing to an individual for the purchase of 3 or more properties in a year, or a licensed real estate broker/associate. All Mortgage Originators are to include on all loan documents any unique identifier of the mortgage originator provided by the Registry described in the Secure and Fair Enforcement for Mortgage Licensing Act of 2008
For any residential mortgage loan, no mortgage originator may receive compensation that varies based on the term of the loan, other than the principal amount. In general, the mortgage originator can only receive payment from the consumer, except as provided in rules that may be established by the Board. Additionally, the mortgage originator must verify the consumers ability to pay. A violation of the “ability to repay” standard, or a mortgage that has excessive fees or abusive terms, may be raised as a foreclosure defense by a borrower against a lender without regard to any statute of limitations. The Act bans the payment of yield spread premiums or other originator compensation that is based on the interest rate or other terms of the loans.
Subtitle B – Minimum Standards for Mortgages
In effect, this section of the Act establishes national underwriting standards for residential loans. It is not the intent of this section to establish rules or regulations that would require a loan to be made that would not be regarded as acceptable or prudential by the appropriate regulator of the financial institution. However, the loan originator shall make a reasonable and good faith effort based on verified and documented information that “at the time the loan is consummated, the consumer has a reasonable ability to repay the loan, according to the terms, and all applicable taxes, insurance (including mortgage guarantee insurance
Mortgage insurance
Mortgage insurance is an insurance policy which compensates lenders or investors for losses due to the default of a mortgage loan. Mortgage insurance can be either public or private depending upon the insurer...
), and other assessments.” Also included in these calculations should be any payments for a second mortgage
Second mortgage
A second mortgage typically refers to a secured loan that is subordinate to another loan against the same property.In real estate, a property can have multiple loans or liens against it. The loan which is registered with county or city registry first is called the first mortgage or first position...
or other subordinate loans. Income verification is mandated for residential mortgages. Certain loan provisions, including prepayment penalties on some loans, and mandatory arbitration on all residential loans, are prohibited.
This section also defined a “Qualified Mortgage” as any residential mortgage loan that the regular periodic payments for the loan does not increase the principal balance or allow the consumer to defer repayment of principal (with some exceptions), and has points and fees being less than 3% of the loan amount. The Qualified Mortgage terms are important to the extent that the loan terms plus an “Ability to Pay” presumption create a safe harbor
Safe harbor
The term safe harbor has several special usages, in an analogy with its literal meaning, that of a harbor or haven which provides safety from weather or attack.-Legal definition:...
situation concerning certain technical provisions related to foreclosure.
Subtitle C – High-Cost Mortgages
A “High-Cost Mortgage” as well as a reverse mortgage
Reverse mortgage
A remortgage is a form of equity release available in the United States. It is a loan available to seniors aged 62 or older, under a Federal program administered by HUD. It enables eligible homeowners to access a portion of their equity...
are sometimes referred to as “certain home mortgage transactions” in the Fed’s Regulation Z (the regulation used to implement various sections of the Truth in Lending Act
Truth in Lending Act
The Truth in Lending Act of 1968 is United States federal law designed to promote the informed use of consumer credit, by requiring disclosures about its terms and cost to standardize the manner in which costs associated with borrowing are calculated and disclosed...
) High-Cost Mortgage is redefined as a “consumer credit transaction that is secured by the consumer’s principal dwelling” (excluding reverse mortgages which are covered in a separate sections), which include:
- Credit Transactions secured by consumer’s principal dwelling and interest rate is 6.5% more than the prime ratePrime ratePrime rate or prime lending rate is a term applied in many countries to a reference interest rate used by banks. The term originally indicated the rate of interest at which banks lent to favored customers, i.e., those with high credibility, though this is no longer always the case...
for comparable transactions - subordinated (ex. second mortgageSecond mortgageA second mortgage typically refers to a secured loan that is subordinate to another loan against the same property.In real estate, a property can have multiple loans or liens against it. The loan which is registered with county or city registry first is called the first mortgage or first position...
) if secured by consumer’s principal dwelling and interest rate is 8.5% more than the prime ratePrime ratePrime rate or prime lending rate is a term applied in many countries to a reference interest rate used by banks. The term originally indicated the rate of interest at which banks lent to favored customers, i.e., those with high credibility, though this is no longer always the case...
for comparable transactions - Points and Fees, excluding Mortgage InsuranceMortgage insuranceMortgage insurance is an insurance policy which compensates lenders or investors for losses due to the default of a mortgage loan. Mortgage insurance can be either public or private depending upon the insurer...
, if the transaction is:- less than $20,000, total points and fees greater than 8% or $1000
- greater than $20,000, total points and fees greater than 6%
- under certain conditions, if the fees and points may be collected more than 36 months after loan is executed
New provisions for calculating adjustable rates as well as definitions for points and fees are also included.
When receiving a High-Cost mortgage, the consumer must obtain pre-loan counseling from a certified counselor. The Act also stipulates there are additional "Requirements to Existing Residential Mortgages". The changes to existing contracts are:
- disallowing Balloon Payments
- disallowing prepayment penalties
- banning the practice of encouraging default on an existing loan when refinancing
Subtitle D – Office of Housing Counseling
Subtitle D, known as the Expand and Preserve Home Ownership Through Counseling Act, creates a new Office of Housing Counseling, within the department of Housing and Urban Development. The director reports to the Secretary of Housing and Urban Development. The Director shall have primary responsibility within the Department for consumer oriented homeownership and rental housing counseling. To advise the Director, the Secretary shall appoint an advisory committee of not more than 12 individuals, equally representing mortgage and real estate industries, and including consumers and housing counseling agencies. Council members are appointed to 3 year terms. This department will coordinate media efforts to educate the general public in home ownership and home finance topics.
The Secretary of Housing and Urban Development is authorized to provide grants to HUD-approved housing counseling agencies and State Housing Finance Agencies to provide education assistance to various groups in home ownership. The Secretary is also instructed, in consultation with other Federal agencies responsible for financial and banking regulation, to establish a database to track foreclosures and defaults on mortgage loans for 1 through 4 unit residential properties.
Subtitle E – Mortgage Servicing
Subtitle E concerns rules concerning escrow and settlement procedures for people who are in trouble repaying their mortgages, and also makes amendments to the Real Estate Settlement Procedures Act
Real Estate Settlement Procedures Act
The Real Estate Settlement Procedures Act , was an act passed by the United States Congress in 1974. It is codified at Title 12, Chapter 27 of the United States Code, .- Purpose :...
of 1974. In general, in connection with a residential mortgage there should be established an escrow
Escrow
An escrow is:* an arrangement made under contractual provisions between transacting parties, whereby an independent trusted third party receives and disburses money and/or documents for the transacting parties, with the timing of such disbursement by the third party dependent on the fulfillment of...
or impound account for the payment of taxes, hazard insurance, and (if applicable) flood insurance, mortgage insurance, ground rents, and any other required periodic payments. Lender shall disclose to borrower at least three business days before closing the specifics of the amount required to be in the escrow account and the subsequent uses of the funds. If an escrow, impound, or trust account is not established, or the consumer chooses to close the account, the servicer shall provide a timely and clearly written disclosure to the consumer that advises the consumer of the responsibilities of the consumer and implications for the consumer in the absence of any such account. The amendments to the Real Estate Settlement Procedures Act
Real Estate Settlement Procedures Act
The Real Estate Settlement Procedures Act , was an act passed by the United States Congress in 1974. It is codified at Title 12, Chapter 27 of the United States Code, .- Purpose :...
of 1974 (or RESPA) change how a Mortgage servicer
Mortgage servicer
A mortgage servicer is the company that borrowers pay their mortgage loan payments to. Mortgage servicers either purchase or retain mortgage servicing rights that allow them to collect payments from borrowers in return for a servicing fee...
(those who administer loans held by Fannie Mae, Freddie Mac, etc.) should interact with consumers.
Subtitle F – Appraisal Activities
Property Appraisal Requirements
A creditor may not extend credit for a higher-risk mortgage to a consumer without first obtaining a written appraisal of the property with the following components:- Physical Property Visit – including a visit of the interior of the property
- Second Appraisal Circumstances – creditor must obtain a second appraisal, with no cost to the applicant, if the original appraisal is over 180 days old or if the current acquisition price is lower than the previous sale price
A "certified or licensed appraiser" is defined as someone who:
- is certified or licensed by the State in which the property is located
- performs each appraisal in conformity with Uniform Standards of Professional Appraisal PracticeUniform Standards of Professional Appraisal PracticeUniform Standards of Professional Appraisal Practice, commonly referred to by the acronym USPAP, can be considered the quality control standards applicable for real property, personal property, intangibles, and business valuation appraisal analysis and reports in the United States and its territories...
and title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989Federal Financial Institutions Examination CouncilThe Federal Financial Institutions Examination Council, or FFIEC, is a formal interagency body of the United States government empowered to prescribe uniform principles, standards, and report forms for the federal examination of financial institutions by the Board of Governors of the Federal...
The Fed, Comptroller of the Currency, FDIC, National Credit Union Administration Board, Federal Housing Agency and Bureau of Consumer Financial Protection (created in this law) shall jointly prescribe regulations.
The use of Automated Valuation Models to be used to estimate collateral value for mortgage lending purposes.
Automated valuation models shall adhere to quality control standards designed to,
- ensure a high level of confidence in the estimates produced by automated valuation models;
- protect against the manipulation of data;
- seek to avoid conflicts of interest;
- require random sample testing and reviews; and
- account for any other such factor that those responsible for formulating regulations deem appropriate
The Fed, the Comptroller of the Currency, the FDIC, the National Credit Union Administration Board, the Federal Housing Finance Agency, and the Bureau of Consumer Financial Protection, in consultation with the staff of the Appraisal Subcommittee and the Appraisal Standards Board
Appraisal Standards Board
The ASB develops, interprets and amends the Uniform Standards of Professional Appraisal Practice . The ASB is composed of seven appraisers who are appointed by the Board of Trustees of The Appraisal Foundation. Activities of the Board are directed by the Chair, who is appointed by the Board of...
of The Appraisal Foundation
The Appraisal Foundation
The Appraisal Foundation located in Washington, D.C., was formed in 1987 by eight major appraisal organizations to promote professionalism in valuation in the United States of America...
, shall promulgate regulations to implement the quality control standards required under this section that devises Automated Valuation Models.
Residential and 1-to-4 unit single family residential real estate are enforced by: Federal Trade Commission, the Bureau of Consumer Financial Protection, and a State attorney general. Commercial enforcement is by the Financial regulatory agency that supervised the financial institution originating the loan.
Broker Price Opinions may not be used as the primary basis to determine the value of a consumer's principal dwelling; but valuation generated by an automated valuation model is not considered a Broker Price Opinion.
The standard settlement form (commonly known as the HUD 1) may include, in the case of an appraisal coordinated by an appraisal management company, a clear disclosure of:
- the fee paid directly to the appraiser by such company
- the administration fee charged by such company
Within one year, the Government Accountability Office shall conduct a study on the effectiveness and impact of various appraisal methods, valuation models and distribution channels, and on the home valuation code of conduct and the appraisal subcommittee.
Subtitle G – Mortgage Resolution and Modification
The Secretary of Housing and Urban Development is charged with developing a program to ensure protection of current and future tenants and at-risk multifamily (5 or more units) properties. The Secretary may coordinate the program development with the Secretary of the Treasury, the FDIC, the Fed, the Federal Housing Finance Agency, and any other Federal Government agency deemed appropriate. The criteria may include:
- creating sustainable financing of such properties, that may take into consideration such factors as:
- the rental income generated by such properties
- the preservation of adequate operating reserves
- maintaining the current level of Federal, State, and city subsidies
- funds for rehabilitation
- facilitating the transfer of such properties, when appropriate and with the agreement of owners
Previously the Treasury Department has created the Home Affordable Modification Program
Home Affordable Modification Program
The Home Affordable Modification Program, also known as HAMP, is a federal program of the United States, set up to help eligible home owners with loan modifications on their home mortgage debt...
, set up to help eligible home owners with loan modifications on their home mortgage debt. This section requires every mortgage servicer
Mortgage servicer
A mortgage servicer is the company that borrowers pay their mortgage loan payments to. Mortgage servicers either purchase or retain mortgage servicing rights that allow them to collect payments from borrowers in return for a servicing fee...
participating in the program and denies a re-modification request to provide the borrower with any data used in a net present value (NPV) analysis. The Secretary of the Treasury is also directed to establish a Web-based site that explains NPV calculations.
The secretary of the Treasury is instructed to develop a Web-based site to explain the Home Affordable Modification Program
Home Affordable Modification Program
The Home Affordable Modification Program, also known as HAMP, is a federal program of the United States, set up to help eligible home owners with loan modifications on their home mortgage debt...
and associated programs, that also provides an evaluation of the impact of the program on home loan modifications.
Subtitle H – Miscellaneous Provisions
- It is the sense of the Congress that significant structural reforms of Fannie Mae and Freddie Mac are required
- GAO is commissioned to study current inter-agency efforts to reduce mortgage foreclosure and rescue scams and loan modification fraud.
- HUD is commissioned to study the impact of defective drywall imported from China from 2004 through 2007 and their effect on foreclosures.
- Additional funding for Mortgage Relief and Neighborhood Stabilization programs ($1 billion each)
- HUD to establish legal assistance for foreclosure-related issues with $35 million authorized for fiscal years 2011 through 2012.
Restriction on U.S. Approval of Loans issued by International Monetary Fund
The US Executive Director at the International Monetary FundInternational Monetary Fund
The International Monetary Fund is an organization of 187 countries, working to foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world...
is instructed to evaluate any loan to a country if
- The amount of the public debt of the country exceeds the annual gross domestic product of the country
- the country is not eligible for assistance from the International Development AssociationInternational Development AssociationThe International Development Association , is the part of the World Bank that helps the world’s poorest countries. It complements the World Bank's other lending arm — the International Bank for Reconstruction and Development — which serves middle-income countries with capital investment and...
and to oppose any loans unlikely to be repaid in full.
Disclosures on Conflict Materials in or Near the Democratic Republic of the Congo
- The SEC is mandated to create rules that address potential conflict materials (e.g. blood diamonds) and to assess whether materials originating in or near the Democratic Republic of the CongoDemocratic Republic of the CongoThe Democratic Republic of the Congo is a state located in Central Africa. It is the second largest country in Africa by area and the eleventh largest in the world...
are benefiting armed groups in the area. - The Secretary of State and Administrator of the United States Agency for International DevelopmentUnited States Agency for International DevelopmentThe United States Agency for International Development is the United States federal government agency primarily responsible for administering civilian foreign aid. President John F. Kennedy created USAID in 1961 by executive order to implement development assistance programs in the areas...
are required to develop a strategy to address the linkages between human rights abuses, armed groups, mining of conflict minerals, and commercial products, and promoted peace and security in the Democratic Republic of the CongoDemocratic Republic of the CongoThe Democratic Republic of the Congo is a state located in Central Africa. It is the second largest country in Africa by area and the eleventh largest in the world...
. - An industry group has complained that the legislation goes beyond voluntary industry initiative such as the Kimberley Process Certification Scheme.
- The United Nations Security CouncilUnited Nations Security CouncilThe United Nations Security Council is one of the principal organs of the United Nations and is charged with the maintenance of international peace and security. Its powers, outlined in the United Nations Charter, include the establishment of peacekeeping operations, the establishment of...
committee charged with overseeing conflict minerals issues reported that this legislation was a "catalyst" for efforts to save lives by cutting off a key source of funding for armed groups.
Reporting on Mine Safety
Requires the SEC to report on mine safety by gathering information on violations of health or safety standards, citations and orders issued to mine operators, number of flagrant violations, value of fines, number of mining-related fatalities, etc., to determine whether there is a pattern of violations.Reporting on Payments by Oil, Gas and Minerals in Acquisition of Licenses
The Securities Exchange Act of 1934Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
is amended to require disclosure of payments relating to the acquisition of licenses for exploration, production, etc., where "payment" includes fees, production entitlements, bonuses, and other material benefits.
Study on Effectiveness of Inspectors General
Comptroller General is commissioned to assess the relative independence, effectiveness, and expertise of presidentially appointed inspectors general and inspectors general of Federal entities.Study on Core Deposits and Brokered Deposits
The FDIC is instructed to conduct a study to evaluate:- the definition of core deposits for the purpose of calculating the insurance premiums of banks;
- the potential impact on the Deposit Insurance Fund of revising the definitions of brokered deposits and core deposits to better distinguish between them;
- an assessment of the differences between core deposits and brokered deposits and their role in the economy and banking sector
- the potential stimulative effect on local economies of redefining core deposits; and
- the competitive parity between large institutions and community banks that could result from redefining core deposits.
Title XVI – Section 1256 Contracts
A Section 1256 Contract refers to a section of the that described tax treatment for any regulated futures contract, foreign currency contract or non-equity option. To calculate capital gains or losses, these trades have traditionally been marked to market on the last business day of the year. A "section 1256 contract" shall not include:- any securities futures contract or option on such a contract unless such contract or option is a dealer securities futures contract
- swapSwap (finance)In finance, a swap is a derivative in which counterparties exchange certain benefits of one party's financial instrument for those of the other party's financial instrument. The benefits in question depend on the type of financial instruments involved...
form of a derivative, such as interest rate swaps, currency swaps, etc.
Impact and Reaction
Legislative reaction
Senator Chris Dodd, who co-proposed the legislation, has classified the legislation as "sweeping, bold, comprehensive, [and] long overdue". In regards to the Fed and what he regarded as their failure to protect consumers, Dodd voiced his opinion that "[…] I really want the Federal Reserve to get back to its core enterprises […] We saw over the last number of years when they took on consumer protection responsibilities and the regulation of bank holding companies, it was an abysmal failure. So the idea that we're going to go back and expand those roles and functions at the expense of the vitality of the core functions that they're designed to perform is going in the wrong way." However, Dodd pointed out that the transfer of powers from the Fed to other agencies should not be construed as criticism of Fed Chairman Ben BernankeBen Bernanke
Ben Shalom Bernanke is an American economist, and the current Chairman of the Federal Reserve, the central bank of the United States. During his tenure as Chairman, Bernanke has overseen the response of the Federal Reserve to late-2000s financial crisis....
, but rather that "[i]t's about putting together an architecture that works."
With regards to the lack of bipartisan input on the legislation, Dodd alleged that had he put together a "[…] bipartisan compromise, I think you make a huge mistake by doing that. You're given very few moments in history to make this kind of a difference, and we're trying to do that." Put another way, Dodd construed the lack of Republican
Republican Party (United States)
The Republican Party is one of the two major contemporary political parties in the United States, along with the Democratic Party. Founded by anti-slavery expansion activists in 1854, it is often called the GOP . The party's platform generally reflects American conservatism in the U.S...
amendments as a sign "[…] that the bill is a strong one."
Richard Shelby
Richard Shelby
Richard Craig Shelby is the senior U.S. Senator from Alabama. First elected to the Senate in 1986, he is the ranking member of the United States Senate Committee on Banking, Housing, and Urban Affairs and was its chairman from 2003 to 2007....
, the top-ranking Republican on the Senate Banking Committee and the one who proposed the changes to the Fed governance, voiced his reasons for why he felt the changes needed to be made: "It's an obvious conflict of interest […] It's basically a case where the banks are choosing or having a big voice in choosing their regulator. It's unheard of." Democratic Senator Jack Reed agreed, saying "The whole governance and operation of the Federal Reserve has to be reviewed and should be reviewed. I don't think we can just assume, you know, business as usual."
Barney Frank
Barney Frank
Barney Frank is the U.S. Representative for . A member of the Democratic Party, he is the former chairman of the House Financial Services Committee and is considered the most prominent gay politician in the United States.Born and raised in New Jersey, Frank graduated from Harvard College and...
, who has proposed his own legislative package of financial reforms in the House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House are established in Article One of the Constitution...
, did not comment on the Stability Act directly, but rather indicated that he was pleased that reform efforts were happening at all – "Obviously the bills aren't going to be identical, but it confirms that we are moving in the same direction and reaffirms my confidence that we are going to be able to get an appropriate, effective reform package passed very soon."
During a Senate Republican press conference on April 21, 2010, Richard Shelby
Richard Shelby
Richard Craig Shelby is the senior U.S. Senator from Alabama. First elected to the Senate in 1986, he is the ranking member of the United States Senate Committee on Banking, Housing, and Urban Affairs and was its chairman from 2003 to 2007....
reported that he and Dodd were meeting "every day", and were attempting to forge a bipartisan bill. Shelby also expressed his optimism that a "good bill" will be reached, and that "we're closer than ever." Saxby Chambliss
Saxby Chambliss
Clarence Saxby Chambliss, Jr. is the senior United States Senator from Georgia. A member of the Republican Party, he previously served as a U.S. Representative ....
echoed Shelby's sentiments, saying "I feel exactly as Senator Shelby does about the Banking Committee negotiations.", but voiced his concern about maintaining an active derivatives market and not drive financial firms overseas. Kay Bailey Hutchison
Kay Bailey Hutchison
Kathryn Ann Bailey Hutchison, known as Kay Bailey Hutchison , is the senior United States Senator from Texas.She is a member of the Republican Party. In 2001, she was named one of the thirty most powerful women in America by Ladies Home Journal. The first woman to represent Texas in the U.S....
indicated her desire to see State banks have access to the Fed, while Orrin Hatch
Orrin Hatch
Orrin Grant Hatch is the senior United States Senator for Utah and is a member of the Republican Party. Hatch served as the chairman or ranking member of the Senate Judiciary Committee from 1993 to 2005...
had concerns over transparency, and the lack of Fannie and Freddy reform.
Industry and other groups
Ed Yingling, president of the American Bankers AssociationAmerican Bankers Association
The American Bankers Association is an industry trade group and professional association representing the United States' banking industry...
, regarded the reforms as haphazard and dangerous, saying "To some degree, it looks like they're just blowing up everything for the sake of change […] [i]f this were to happen, the regulatory system would be in chaos for years. You have to look at the real-world impact of this."
Some experts have argued that the Dodd–Frank Act isn’t strong enough, arguing that it fails to protect consumers adequately, and, more importantly, does not end too big to fail
Too Big to Fail
Too Big to Fail is a television drama film in the United States broadcast on HBO on May 23, 2011. It is based on the non-fiction book Too Big to Fail by Andrew Ross Sorkin. The TV film was directed by Curtis Hanson...
.
The Securities Industry and Financial Markets Association
Securities Industry and Financial Markets Association
The Securities Industry and Financial Markets Association is a leading securities industry trade group representing securities firms, banks, and asset management companies in the U.S. and Hong Kong. SIFMA was formed on November 1, 2006, from the merger of The Bond Market Association and the...
(SIFMA) — the "top Wall Street lobby" — has expressed support for the law, and has urged Congress not to change or repeal it in order to prevent a stronger law from passing.
Law professor and bankruptcy expert David Skeel concluded that the law has two major themes which are "government partnership with the largest Wall Street banks and financial institutions" and "a system of ad hoc interventions by regulators that are divorced from basic rule-of-law constraints". While he states that "the overall pattern of the legislation is disturbing", he also concludes that some are clearly helpful, such as the derivatives exchanges and the Consumer Financial Protection Bureau.
Congressional Budget Office
On April 21, 2010, the CBOCongressional Budget Office
The Congressional Budget Office is a federal agency within the legislative branch of the United States government that provides economic data to Congress....
released a cost-estimate of enacting the legislation. In its introduction, the CBO briefly discussed the legislation and then went on to generally state that it is unable to assess the cost of financial crises under current law, and added that estimating the cost of similar crises under this legislation (or other proposed ideas) is equally (and inherently) difficult: "[…] CBO has not determined whether the estimated costs under the Act would be smaller or larger than the costs of alternative approaches to addressing future financial crises and the risks they pose to the economy as a whole."
In terms of the impact on the Federal budget, the CBO estimates that deficits would reduce between 2011–2020, but largely in part due to the risk-based assessment fees levied to initially capitalize the Orderly Liquidation Fund; after which, the majority of revenue for the Fund would be drawn primarily from interest payments. Due to this, the CBO projects that eventually the money being paid into the Fund (in the form of fees) would be exceeded by the expenses of the Fund itself. Additionally, the CBO points out that the reclassification of collected fees by various government agencies has the effect of boosting revenue.
The cost estimate also raises questions about the time-frame of capitalizing the Fund – their estimate took the projected value of fees collected for the Fund (and interest collected on the Fund) weighed against the expected expense of having to deal with corporate default(s) until 2020. Their conclusion was it would take longer than 10 years to fully capitalize the Fund (at which point they estimated it would be approximately 45 billion), although no specifics beyond that were expressed.
The projection was a $5 billion or more deficit increase in at least one of the ten-year periods starting in 2021.
Negative effects on bank customers and job creation
A Wall Street Journal opinion piece speculated that the law would make it more expensive for startupsStartup company
A startup company or startup is a company with a limited operating history. These companies, generally newly created, are in a phase of development and research for markets...
to raise capital and create new jobs. However, according to Reuters, the Dodd-Frank act is believed to be a job creator for the legal industry.
See also
- Financial crisis of 2007–2010
- Regulatory responses to the subprime crisisRegulatory responses to the subprime crisisRegulatory responses to the subprime crisis addresses various actions taken by governments around the world to address the effects of the subprime mortgage crisis....
- Subprime mortgage crisis solutions debateSubprime mortgage crisis solutions debateThe Subprime mortgage crisis solutions debate discusses various actions and proposals by economists, government officials, journalists, and business leaders to address the subprime mortgage crisis and broader economic crisis of 2007-2010.-Overview:...
- Wall Street reformWall Street reformWall Street Reform or Financial Reform was signed by President of the United States Barack Obama on July 22, 2010. Since the economic crisis of 2007-09 , there was an ongoing debate taking place regarding the insufficient oversight and regulation of the US financial system, non-regulated...
- Volcker RuleVolcker RuleThe Volcker Rule is a specific section of the Dodd–Frank Wall Street Reform and Consumer Protection Act originally proposed by American economist and former United States Federal Reserve Chairman Paul Volcker to restrict United States banks from making certain kinds of speculative investments that...
- Office of Financial ResearchOffice of Financial ResearchThe Office of Financial Research is an agency established by the Dodd-Frank Wall Street Reform and Consumer Protection Act within the Treasury Department to improve the quality of financial data available to policymakers and facilitate more robust and sophisticated analysis of the financial...
External links
- Enrolled Final Version (HR 4173) (text), via the U.S. Government Printing Office (record details)
- Financial Reform Legislation - Full text of legislation, via banking.senate.gov
- Financial Reform Summary - Summary of the legislation, via banking.senate.gov
- Report on RAFSA, via banking.senate.gov
- Americans for Financial Reform Letters and Statements about the bill Americans for Financial Reform Letters and Statements about the Act
- Summary of the Dodd–Frank Wall Street Reform and Consumer Protection Act, Enacted into Law on July 21, 2010” Davis Polk, & Wardwell LLP, downloaded July 24, 2010
- Dodd–Frank Act, Commentary and Insights by Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates
- Financial Regulatory Reform: What You Need to Know, By Matthew G. Lamoreaux in Journal of Accountancy September 2010
- Dodd–Frank Act, A Brief Legislative History with Links, Reports, & Summaries Law Librarians' Society of Washington, DC