Financial Regulatory Coordination: The Role and Functioning of the President's Working Group
Released: 2000-02-24T00:00:00

Letter

Background

The Working Group was established by an executive order in 1988, in response to the 1987 market crash. The executive order listed 29 issues that the Working Group was required to consider during the course of its review. (See app. I for a complete list of the issues it was required to consider.) Following the issuance of its report in 1988 and follow-up work in 1991, the Working Group became largely inactive until 1994 when, at theurging of Congress and others, it was reactivated by the Secretary of the Treasury. Since that time, its principals and a Steering Committee, consisting of senior staff of the participating agencies, have met regularly.

Creation of the Working Group

On March 18, 1988, the President established the Working Group to consider the major issues and recommendations raised by the numerous studies on the October 1987 market decline that had the potential to improve the integrity, efficiency, orderliness, and competitiveness of U.S. financial markets. The group, which comprised the heads of the primary federal financial regulatory agencies, was required to provide a coordinating framework for consideration, recommendation, action, and resolution of the complex issues raised by the market crash. The Secretary of the Treasury was named as the group’s chairman; and the other members, or principals, are the chairs of the Federal Reserve, SEC, CFTC, or their respective designees. Members serve in the capacity as heads of their respective agencies with no additional compensation. Treasury has provided much of the administrative support that is required for the group’s functioning. However, the Working Group has no separate budget.

In addition to its official members, several other financial regulators and groups, including the Federal Reserve Bank of New York (FRBNY), the Federal Deposit Insurance Corporation (FDIC), the Office of the Comptroller of the Currency (OCC), the Office of Thrift Supervision (OTS), the National Economic Council, and the Council of Economic Advisors, have participated regularly in the activities of the Working Group and its Steering Committee. At various times in the past, staffs of other agencies, such as the Office of Management and Budget, Department of Labor, and the Department of Commerce, have participated in discussions.

In May 1988, the Working Group submitted to the President the Interim Report of the Working Group on Financial Markets, which contained recommendations to Congress, the federal financial regulators, the securities and futures exchanges, and the financial industry, on margin and credit systems, clearance and settlement systems, and the establishment of coordinated circuit breakers. Following the issuance of this market crash report and a 1991 review of how circuit breakers performed in 1989 when the U.S. securities market experienced volatility, the Working Group became largely inactive. According to regulatory officials, although the Working Group did not meet regularly in the early 1990s, the principals and agencies’ staffs maintained some level of communication during this period.

Activity Resumed in 1994

Following this period of relative inactivity in the early 1990s, the Working Group was reactivated, in part, at the request of the Chairman and Ranking Minority Member of the Senate Committee on Banking, Housing, and Urban Affairs. In a letter dated September 23, 1993, they requested the views of the Secretary of the Treasury on the status of the Working Group; its activities; and the adequacy of coordination among and contingency planning by, the federal financial regulatory agencies. Largely drawing from the overall goals discussed in the 1988 executive order, the letter asked whether revitalization of the Working Group would be helpful in coordinating the activities of the agencies amidst increasingly integrated global financial markets.

In early 1994, the Treasury Secretary issued a letter (1994 Bentsen letter) to the other principals to confirm that the Working Group should continue and to expand its activities. The letter noted that potential problems in financial markets may cross the current jurisdictional lines among the federal financial regulators, and it requested that the Working Group consider new developments in financial markets beyond those surrounding the 1987 market crash. The letter suggested that the group serve as a means to coordinate the policies and actions of these regulators to respond to developments and emergencies in the financial markets. Suggested issues for consideration included risks in the OTC derivatives markets and clearance and settlement systems.

Scope and Methodology

To fulfill our objectives, we determined whether the items the Working Group was required to consider in the executive order were considered. This effort included reviewing the Interim Report of the Working Group on Financial Markets (May 1988) and annual Intermarket Coordination Reports written by the constituent agencies for 1991 through 1995. We also examined various other reports, articles, testimonies, and papers. Finally, we met with SEC and CFTC officials to discuss the efforts that were undertaken in response to the issues articulated in the executive order.

To determine what additional issues the Working Group has considered, we interviewed officials from Treasury, the Federal Reserve, SEC, and CFTC, who, among others, constitute the Steering Committee. We reviewed letters, reports, and other relevant documents produced by the Working Group since 1988. To determine the extent of coordination and cooperation within the Working Group and its Steering Committee, we met with agency officials and reviewed the agencies’ Intermarket Coordination Reports, which discussed their coordination activities. We also reviewed 1998 and 1999 Steering Committee meeting agendas to determine the nature of the group’s biweekly meetings. Although regulators also coordinate certain activities bilaterally and multilaterally, we focused on the activities of the Working Group (and Steering Committee). To gather information on the views of Members of Congress about the Working Group, we reviewed hearing transcripts and legislative histories. We also interviewed CFTC, Federal Reserve, SEC, and Treasury officials involved with the Working Group to obtain their views. Finally, we drew upon our relevant past work.

We requested written comments on a draft of this report from the Secretary of the Treasury and the heads of CFTC, the Federal Reserve, and SEC. Treasury provided written comments that are discusses near the end of this letter and reprinted in appendix II. CFTC, the Federal Reserve, and SEC did not provide written comments. We did our work in Washington, D.C., between March 1999 and December 1999 in accordance with generally accepted government auditing standards.

The Working Group Addressed the Issues Specified in the Executive Order

In May 1988, the Working Group issued its market crash report, which generally responded to the issues that the President required the Working Group to consider in the executive order. These issues were related to (1) investor confidence, such as the adequacy of customer protection rules and their enforcement in all markets; (2) the credit system, such as private sector credit arrangements for exchange settlement systems and market participants; (3) market mechanisms, such as revised equity short sale rules; and (4) the financial regulatory structure, such as the need for a formal federal financial regulatory body to mediate intermarket issues. The report included numerous recommendations made in response to the issues listed in the executive order. Virtually all of the recommendations were undertaken by the relevant regulator, namely, SEC or CFTC and the securities and futures exchanges they regulate. The issues listed in the executive order are discussed in appendix I of this report.

In addition to discussing the issues, the market crash report concluded that the Working Group could monitor the progress of its recommendations by serving as a consultative and coordinating forum and by expediting resolution of the issues that remained unresolved. Although the report recognized the need for federal financial regulatory coordination, it concluded that a more formally structured version of the Working Group was unnecessary because the current structure was sufficient.

The Working Group Has Responded to Various Market Events

The Working Group was established in response to a market event, and its subsequent activities focused on responding to market events. Since its 1994 reactivation, it has been the primary vehicle regulators have used to respond collectively to various intermarket events. Most recently, its activities have included the 1997 market decline, hedge funds and excessive leverage, Y2K preparedness issues, and the rapid growth of the OTC derivatives market.

1997 Market Decline Prompted Working Group to Recommend Changes to Circuit Breaker Rules

After the creation of coordinated circuit breakers following the 1987 market crash, the Working Group formed a staff subgroup on circuit breakers, which analyzed the regulators’ review of the performance of circuit breakers during October 1989, when U.S. securities markets again experienced significant price volatility. Further, the subgroup noted that an ongoing objective for the Working Group was to assess whether circuit breakers need to be simplified and whether triggers should be adjusted and better coordinated. According to agency officials, SEC, CFTC, and the securities and futures exchanges also continued to monitor circuit breakers.

Following the October 1997 market decline when circuit breakers were triggered for the first time--10 years after the 1987 market crash--the Working Group reevaluated their use. The Working Group studied how circuit breakers performed during the 1997 market decline; and as a result of its findings, it encouraged the NYSE to revise its circuit breaker rules. The NYSE changed its rules, which had been stated in terms of a point decline in the Dow, to reflect a percentage decline in the Dow, effective April 1998.

Proposed OTC Derivatives Legislation Prompted Renewed Bankruptcy Reform Activities

In its 1988 report on the market crash, the Working Group recommended that SEC and CFTC review existing bankruptcy laws and regulations to formulate a coordinated approach toward broker-dealer and futures commission merchant bankruptcies and to identify areas requiring legislative action. Although legislative changes were not made at that time, work in this area continued among the agencies. Following the group’s reactivation in 1994, it proposed legislative changes to the Bankruptcy Code that would clarify the validity of netting certain foreign currency transactions. A similar proposal was subsequently enacted into law. “(1) clarify the treatment of certain financial contracts (i.e., securities contracts, commodity contracts, forward contracts,[] repurchase agreements,[] and swap agreements[]) upon the insolvency of one of the counterparties to a transaction and (2) recognize certain netting arrangements in order to reduce the risk that the failure of one entity to pay its obligations will cause other firms to fail to meet their obligations.”

The Proposal also clarified that cross-product close-out netting would be permitted under law. Thus, a master netting agreement would allow obligations arising from certain financial contracts to be netted against each other. However, the Proposal maintained existing limitations on the types of entities that would benefit from the new provisions.

The Working Group Responded to Issues Raised by LTCM’s Near-Collapse

Following the near-collapse of LTCM and renewed concerns about the risks that hedge funds can pose to financial markets, the Working Group issued a report outlining the principal policy issues raised by the episode. As indicated in our October 1999 report, LTCM was a large leveraged hedge fund that lost nearly 90 percent of its capital between January and September 1998, almost rendering the hedge fund insolvent. LTCM’s near- collapse raised concerns at the Federal Reserve and among its creditors and counterparties that the rapid liquidation of LTCM’s trading positions and related positions of other market participants might pose a significant threat to already unsettled global financial markets. Therefore, in September 1998, the Federal Reserve facilitated a private sector recapitalization to prevent LTCM’s collapse.

The Working Group released a report in April 1999 that said constraining excessive leverage was the principal policy issue arising from the events surrounding LTCM’s near-collapse. The report said that constraining excess leverage not only among hedge funds but also among other financial institutions, was important to decreasing the likelihood of a general breakdown in the functioning of financial markets. The report included recommendations for improvements in several areas, such as more frequent and meaningful public disclosure, regulatory encouragement of improved private sector risk-management practices, regulatory promotion of risk-sensitive approaches to capital adequacy, congressional expansion of risk-assessment rules, resolution of bankruptcy issues, and regulatory encouragement of compliance with international standards by offshore financial centers.

The Working Group Was Asked to Report on Y2K Preparedness

In May 1999, the Ranking Minority Member of the House Committee on Commerce asked the group to report on progress made on issues raised in our April 1999 report on Y2K preparedness within the financial markets.In September 1999, the Working Group issued a response to this request.Specifically, the group outlined work completed on (1) coordination of actions and information among regulators and other organizations during the date change period; (2) promotion of additional Y2K readiness disclosure by foreign organizations; (3) development of strategies to communicate the readiness of the financial sector to alleviate the public’s concerns; and (4) identification of significant changes, if any, in the conditions reported in our April 1999 report.

The Working Group Was Asked to Report on OTC Derivatives

As mentioned earlier, the Working Group was revitalized, in part, because of concerns raised about risks posed by the rapid growth of the OTC derivatives market. In 1994, following the release of our report on OTC derivatives, Congress asked the Working Group to respond to issues raised in the report. In July 1994, it issued a response and agreed to continue to discuss the issues concerning OTC derivatives. In 1998, the discussion on how to address OTC derivatives oversight continued; however, CFTC’s chairperson became dissatisfied with the Working Group’s progress and CFTC issued a concept release on OTC derivatives oversight as an alternative mechanism for discussion about its stance on this issue. The stated purpose of the concept release was to gather “relevant data and analysis that will assist in determining whether its current regulatory approach continues to be appropriate or requires modification.”

The concept release generated controversy among market participants and other regulators. Consequently, SEC, the Federal Reserve, and Treasury issued a joint statement expressing deep concerns with the stance taken in the concept paper. Additionally, they drafted proposed legislation to limit temporarily CFTC’s rulemaking on swaps. Similar legislation was subsequently passed, and in 1998, the Working Group was asked to study OTC derivatives oversight. Issued on November 9, 1999, the resulting report examined the regulatory or legislative changes that may be appropriate to reduce systemic risk, eliminate legal uncertainty, and curtail regulatory arbitrage; it also addressed the potential use of derivatives for fraud or manipulation.

The Working Group Provides a Mechanism for Coordination and Cooperation

Agency officials involved with the Working Group generally described it as an informal mechanism that allows the free exchange of views and information on market events, proposed rulemaking or other regulatory action, and legislative developments. Their description of the group as a coordination vehicle is consistent with the stated objective in the 1994 Bentsen letter. In addition to Treasury, the Federal Reserve, SEC, and CFTC, staffs of other agencies and relevant groups were often included in the Working Group’s activities. Although officials involved with the Working Group believe its current structure functions well, over the years, various Members of Congress have questioned the Working Group’s ability to coordinate and function effectively. Various proposals have been made to provide a statutory basis to ensure its continuity, accountability, and effectiveness. However, these proposals also raise issues that would have to be considered, such as increased resource commitments and potential structural issues.

The Working Group Views Itself as an Informal Coordinating Mechanism

Although the Working Group is not based in statute and thus has no authority, agency officials involved with the Working Group view it as a useful mechanism that facilitates informal information sharing and coordination for various intermarket issues. In 1998, agenda items for biweekly Steering Committee meetings included decimalization of stock price quotes, Y2K initiatives, proposed revisions to the Bankruptcy Code, and circuit breakers. The 1999 agendas we reviewed were dominated by ongoing work on hedge funds and OTC derivatives oversight reports. According to agency officials, these biweekly meetings also have resulted in greater coordination among the regulators outside of the Working Group. For example, they said that a presentation at one of the Steering Committee meetings by SEC’s Chief Accountant on SEC’s soon-to-be released position on loan loss reserves resulted in separate discussions on the issue outside of the Working Group. The discussion was referred to the Federal Financial Institutions Examination Council, which held meetings with accountants from various financial regulators to discuss their differing positions on the issue. The regulators subsequently issued a joint statement “to better ensure the consistent application of loan loss accounting policy and to improve the transparency of financial statements.”

Agency officials described the Steering Committee’s discussions as “policy-oriented.” They added that although some of their activities result in tangible products, such as reports and legislative proposals, other issues are discussed on a regular basis. For example, agency officials said that they use the biweekly meetings to inform others about recent or proposed regulatory actions. In addition, some officials noted that the meetings also provide a forum to discuss upcoming hearings and share testimonies. In addition to the periodic principal meetings and biweekly Steering Committee meetings, the Working Group provides a forum to address intermarket events as they unfold. For example, agency officials said that when Barings failed in 1995, the Working Group provided a forum to share information about the unfolding crisis.

Although officials generally described the Steering Committee’s biweekly discussions as policy oriented, they said that they generally did not use these meetings as a forum to coordinate regulatory oversight activities of its members’ agencies. Rather, they said the meetings provided a forum to alert other regulators of current events at the various agencies. For example, agency officials said that these biweekly meetings were not used to debate the merits of proposed rulemaking. Instead, agency officials often used the meetings to inform one another of agency action shortly before or after public announcements were made. When asked whether the Steering Committee was ever used as a forum to discuss potential regulatory concerns about an individual financial institution (prior to a crisis), officials said that it generally had not been used in that manner but that it could be used as such a vehicle in the future. The regulatory officials also pointed out that coordination and information sharing between the staffs of regulators occurred bilaterally and multilaterally on a “case-by- case” basis.

In recent years, because of the blurring of traditional lines that separate the businesses of banks and securities and futures firms, it is more important than ever for regulators to assess information that cuts across these lines. We addressed this issue in our report on the regulatory issues raised by LTCM and recommended that federal financial regulators develop better ways to coordinate the assessment of risks that cross traditional regulatory and industry boundaries. The agencies commented that the Working Group already functions this way. However, the Working Group was established in response to a crisis and, as the need has arisen, has continued to function as such. That is, activities generally have been focused on responding to market events and developing policies to improve the functioning of markets. Generally, it has not functioned as a group for coordinating regulatory oversight, although it has discussed information sharing among agencies. The Working Group’s activities generally have not included such matters as routine surveillance of risks that cross markets or of sharing information that is specific enough to help identify potential crises. However, as mentioned previously, it has served as a mechanism to share information during unfolding crises.

The Working Group Also Provides a Mechanism for Members to Coordinate With Other Agencies and Groups

Staffs of nonmember financial regulators also have participated in the activities of the Working Group. According to officials, these participants take part in Working Group subgroups and contribute to its reports and other activities. For example, in the mid 1990s both the Federal Reserve and FDIC separately began to explore potential changes to the Bankruptcy Code to update laws to reflect changes in the market and better suit modern financial contracts. A series of meetings among various regulators led to the issue becoming a matter for consideration by the Working Group. FDIC, one of the nonmember participants in the Working Group, led the work on this issue and assisted in drafting the legislative proposal that suggested changes to the Bankruptcy Code to address netting certain financial products. More recently, in addition to the member agencies, OCC and FRBNY were involved in the Working Group’s April 1999 report on hedge funds and its November 1999 report on OTC derivatives.

Proposals to Provide Statutory Basis for the Working Group Raise Issues of Resources and Structure

Since 1994, various Members of Congress have raised questions about the Working Group’s ability to coordinate and function effectively. For example, following the near-failure of LTCM, some Members of Congress and others questioned the degree of coordination and cooperation that existed within the group prior to the development of the potential crisis. Various proposals have been made to provide a statutory basis for the Working Group, in the belief that such a basis could ensure its continuity, make it more accountable to Congress, and improve its effectiveness.

Although such proposals to provide a statutory basis for the Working Group could help ensure greater continuity and improved accountability, their impact on effectiveness could depend upon how certain issues were resolved. First, establishing the Working Group in statute and providing it with a mission would likely lead to a more formal structure than that of the current Working Group, with its informal structure and mission as articulated in the 1994 Bentsen letter. A more formal structure and more clearly articulated congressionally defined mission could provide the basis for a more focused approach to interagency coordination. However, members of the Steering Committee expressed concerns that a more formal structure could have the effect of limiting the Working Group’s ability to achieve its current level of coordination, because it could lead to more bureaucracy. They believe its current structure is adequate to achieve a set of modest but realistic coordination goals.

Second, if Congress were to articulate a mission, mission requirements likely would have staff and budgetary implications. There is likely to be a correlation between the expansiveness of the mission and the resource commitment such a mission would entail. For example, certain improvements to coordination, such as greater information sharing of counterparty risk exposures across markets, could potentially be achieved with little or no additional staff or specified budget. However, more formal monitoring and sharing of routine company-level information aimed at identifying potential systemic risks could require full-time staff and other budgetary resources.

A third issue related to providing a statutory basis for the Working Group is the Working Group’s lack of authority. Currently, it has no authority to bind members to its decisions or positions. Its members serve in their capacities as heads of agencies, and three of the agencies are led by commissions or a board; and thus Working Group decisions or recommendations must be approved by the respective commissions or board of the members before they can be acted upon. Formalizing the group would have little effect on addressing this issue unless legislation provided a mechanism for making decisions binding. For example, if the group’s membership were expanded to include the entire commissions and board, they may be more likely to adopt the group’s decisions. However, this would raise the additional issue of making the size of the group difficult to manage.

Agency Comments and Our Evaluation

Treasury provided written comments on a draft of this report that are reprinted in appendix II. In general, Treasury raised no objections with our findings, and it reiterated that the Working Group provides a productive and valuable forum to coordinate responses, share information, and shape policy related to the financial markets.

As we agreed with your office, we plan no further distribution of this report until 7 days from its issuance date unless you publicly release its contents sooner. We will then send copies of this report to Representative Paul Kanjorski, Ranking Minority of the Subcommittee and to Senator Phil Gramm, Senator Tom Harkin, Senator Richard Lugar, Senator Paul Sarbanes, Representative Tom Bliley, Representative Larry Combest, Representative John Dingell, Representative John LaFalce, Representative Jim Leach, and Representative Charles Stenholm in their capacities as Chairs or Ranking Minority Members of other concerned Senate and House Committees and Subcommittees. We are also sending copies of this report to the Honorable Alan Greenspan, Chairman, the Federal Reserve Board of Governors; the Honorable Arthur Levitt, Chairman, SEC; the Honorable William Rainer, Chairman, CFTC; and the Honorable Lawrence Summers, Secretary of the Treasury. Copies will also be made available to others upon request.

If you have any questions on matters discussed in this report, please contact me or Orice M. Williams at (202) 512-8678. The other major contributor to this report was Tonita W. Gillich.

Overview of the Issues the Working Group Was Required to Consider

The executive order establishing the Working Group included 29 issues that the Working Group was required to consider. The issues were divided among (1) investor confidence, (2) the credit system, (3) market mechanisms, and (4) the regulatory structure. In May 1988, the Working Group issued its report, which included recommendations that generally addressed some aspect of each of the 29 issues. Most of the recommendations were to be carried out by the relevant agencies, primarily the Securities and Exchange Commission (SEC) and/or the Commodity Futures Trading Commission (CFTC) and the securities and futures exchanges they regulate. According to SEC and CFTC officials, although work on some of the issues was completed, work on others was an ongoing process. Table I.1 shows the issues the executive order required the Working Group to consider.

Although all of the issues have been considered, the action taken varies. SEC and CFTC officials said that action on some of the issues is considered part of an ongoing process or review. For example, all of the issues listed under “Credit system issues” were considered to be part of a continuing process that included ongoing reviews and revisions to regulations, standards, and approaches. Other issues were considered by SEC and/or CFTC and the securities and futures exchanges that they regulate, but they were not pursued because implementing them was determined not to be feasible or practicable. For example, according to SEC officials, some of these issues, such as price limits on individual stocks, were the result of academic articles and were considered and rejected by the agencies and exchanges. Some issues, such as “establishment of separate trading of index baskets of stock,” were attempted and withdrawn due to lack of investor interest. Finally, other issues were considered, and the actions taken were considered complete. One example involved the issues related to circuit breakers, which officials generally considered completed following the 1998 revisions.

Issue for consideration Investor confidence 1. Adequacy of mechanisms to address intermarket frontrunning and price manipulation. 2. Expansion of information dissemination and trade processing capacities of exchanges, member firms, service bureaus, and clearing systems. 3. Better evaluation and enforcement of affirmative market-maker obligations. 4. Adequacy of customer protection rules and their enforcement in all markets. 5. Adequacy of regulatory agency and self-regulatory organizatikon resources and staffing levels. 6. Assessment of a variety of approaches to ensuring better access and order execution for individuals’ orders.

Issue for consideration Credit system issues 7. Coordination of clearing system operations and information exchange. 8. Adequacy of private sector capital for futures floor traders, market-makers, broker- dealers, and futures commission merchants—including any appropriate revisions of capital rules. 9. Adequacy and clarity of private sector credit arrangements for exchange settlement systems and market participants. 10. Progress toward on-line clearing and same-day trade comparisons for all equity and derivative products. 11. Changes in margin requirements and additional security deposits for financial protection against price-spike volatility, settlement capability for variation margin, and positions with concentrated risk. 12. Establishment of harmonized leverage requirements for uncovered customer positions in cash and derivative markets. Market mechanisms 13. The desirability of simultaneous, brief trading halts in all markets based on clear authority and carefully established and known standards. 14. Coordination of options and continuing trading of index futures and options with the trading of the underlying stocks. 15. Establishment of separate trading of index “baskets” of stock. 16. Providing for or requiring physical delivery for settlement of index futures and options. 17. Development of block trading procedures for index futures and options on futures. 18. Revision of the equity market short-sale rules. 19. Use of “open outcry,” “one price auction,” and specialist book disclosure approaches in large, intraday order imbalance situations in specialist markets to facilitate price discovery and market clearing and minimize intermarket disruptions and discontinuities. 20. Emergency measures to restrict large, rapid liquidations of positions. 21. Preestablished standards for shortened trading hour for all markets in periods of sustained heavy volume. 22. Investigation of the usefulness of enhanced reporting requirements for broker-dealer recordkeeping, large trader tracking systems, and program traders, with due consideration to financial privacy concerns and international capital flows. 23. Imposition of price limits for index futures and options. 24. Full-day clearings in response to specified price moves. 25. Restrictions on access to the Designated Order Turnaround system for program trades based on either volume or price move limits. 26. Price limits on individual stocks. 27. Aggregate cash and derivative market position limits. Regulatory structure 28. Careful consideration of the desirability of more formal intermarket coordination and cooperation mechanisms, different regulatory regimes, a “tie-breaking referee” for intermarket issues, or emergency powers. 29. Development of mechanisms for international coordination on multimarket issues.

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