Agencies Issue Advanced Notice of Proposed Rulemaking on Enhanced Cyber Risk Management Standards


On October 19, 2016, the Federal Reserve Board, the Federal Deposit Insurance Corporation, and the Office of the Comptroller of the Currency announced proposed rules relating to cybersecurity and risk management concerns that would apply to larger institutions under their purview. FDIC Press Release. Federal Reserve Press Release. OCC Press Release.

European Commission Report on Credit Rating Agencies Regulation


On October 19, 2016, the European Commission published a report (COM(2016) 664 final) responding to reporting obligations set out in Regulation 1060/2009 (CRA Regulation).

The report:

  • Analyzes references to external credit ratings in EU legislation and in private contracts among parties in financial markets.
  • Assesses potential alternatives to external credit ratings that are currently used by market participants in the EU. The Commission is of the view that there are currently no feasible alternatives that could entirely replace external credit ratings.
  • Evaluates the impact of the CRA Regulation on governance and internal procedures of CRAs, in particular the prevention of conflict of interests and the use of alternative remuneration models.
  • Analyzes the provisions relating to structured finance instruments (SFIs) and their potential extension to other asset classes. The Commission does not think it is appropriate to extend CRA Regulation provisions to other financial products.
  • Assesses the impact and effectiveness of the CRA Regulation’s measures concerning competition in the credit rating industry. Given some provisions are still in the process of implementation, the Commission will continue monitoring the development of the market before considering the adoption of further measures. More generally, the Commission will seek to avoid and further reduce regulatory barriers to market entry.
  • Considers the feasibility of establishing a European CRA for the assessment of sovereign debt and a European credit rating foundation for all other credit ratings. The Commission considers there to be no need at present for a European CRA specialized in sovereign debt or for other credit ratings.

European Commission Adopts Delegated Regulation on RTS on Minimum Details of Data to Report to Trade Repositories


On October 19, 2016, the European Commission adopted a Delegated Regulation amending Delegated Regulation 148/2013 supplementing EMIR (Regulation 648/2012) as regards regulatory technical standards (RTS) on the minimum details of the data to be reported to trade repositories (C(2016) 6624 final).

EMIR requires all counterparties and central counterparties (CCPs) to report the details of any OTC derivative contract they have concluded and of any modification or termination of the contract to a trade repository.

The Delegated Act updates existing standards that were published in the Official Journal of the EU (OJ) in February 2013 (see Legal update, Delegated regulations on EMIR regulatory technical standards published in Official Journal). It reflects recent developments and experience gained in the area of trade reporting. The revised RTS aim to:

  • Introduce new fields and values to reflect market practice or other necessary regulatory requirements.
  • Clarify data fields, their description or both.
  • Adapt existing fields to the reporting logic prescribed in existing Q&As or reflect specific ways of populating them.

The Commission has also published an Annex, which sets out the counterparty data and common data details to report to trade repositories.

The next step is for the Council of the EU and the European Parliament to consider the Delegated Regulation. If neither of them objects to it, the Delegated Regulation will enter into force 20 days after its publication in the OJ.

European Commission TTIP Advisory Group Report Considers Financial Services Under TTIP


On October 17, 2016, the European Commission published a report documenting the meeting of the Commission’s Transatlantic Trade and Investment Partnership (TTIP) Advisory Group on September 6, 2016.

Financial services are considered at section 4 of the report in the context of TTIP. The group notes that the EU tabled its offer on financial services market access in July 2016 (see Legal update, European Commission releases EU financial services offer for 14th round of TTIP negotiations: July 2016) . Discussions relating to this offer will continue during the next round of TTIP negotiations in October 2016.

The report also refers to the new joint EU-U.S. Financial Regulatory Forum, which was launched in July 2016 with the aim of making continued efforts to improve EU-U.S. regulatory coherence (see Legal update, EU and US establish joint financial regulatory forum ). The EU would like to see the work of the forum “linked into” the final TTIP agreement because, for the EU, the real issue for the financial services sector in the transatlantic context is regulatory transparency and cooperation. Diverging regulation may have negative implications on trade in financial services, financial stability, and consumer protection.

At the meeting, the group also discussed transparency (members expressed an interest in seeing documents related to financial services regulatory cooperation), domestic and international legislation (neither the U.S. nor the EU is seeking, through the forum, to revise the other’s legislation), the TTIP market access offer in financial services (prudential measures, such as capital requirements for banks, are not covered as these are out of scope) and measures to help consumers navigate transatlantic financial services (such as reduced charges for international transfers and simpler opening of bank accounts).

Rating Agency Developments


On October 17, 2016, DBRS issued a report entitled: CMBS North American SurveillanceReport.

On October 14, 2016, Moody’s issued a report entitled: Moody’s Approach to Rating Securities Backed by Pools of Both FFELP and Private Student Loans. Report.

On October 14, 2016, DBRS issued a report entitled: Global Methodology for Rating Finance CompaniesReport.

Commission Approves an Order Regarding Swap Dealer Registration De Minimis Exception


On October 13, 2016, the U.S. Commodity Futures Trading Commission extended until December 31, 2018, the $8 billion swap dealer registration de minimis threshold. Unless it is further modified, the threshold will become $3 billion once the extension expires. Press Release.

SEC Adopts Rules to Modernize Information Reported by Funds, Require Liquidity Risk Management Programs, and Permit Swing Pricing


On October 13, 2016, the Securities and Exchange Commission adopted rules to implement modern reporting and disclosure requirements for registered investment companies and open‑end funds. Press Release.

SIFMA Sends Comment Letters to FHFA on Credit Risk Transfer


SIFMA, along with the Association of Mortgage Investors and the National Association of Real Estate Investment Trusts, and separately along with the ABA, AMI, HPC, MBA, and SFIG, submitted comment letters to the FHFA in response to the FHFA request for comments on the GSEs credit risk transfer programs, particularly with respect to exploration of more “front end” risk transfer options that share risk with the private sector before, or concurrently with, the purchase of loans by the GSEs. SIFMA, AMI, NAREIT Comment Letter Joint Trades Comment Letter.

Compromise Proposal on the Regulation Amending EuVECA Regulation and EuSEF Regulation

On October 13 2016, the Presidency of the Council of European Union published a compromise proposal (13168/16) in relation to the proposed Regulation amending the European Venture Capital Funds Regulation (Regulation 345/2013).

Additions to the previous compromise proposal published in September 2016 are highlighted by bold underline, and deletions are highlighted in strikethrough.

Implementing Regulations on its Credit Assessments of ECAIs under Solvency II and CRR Published in OJ

On October 12, 2016, the Commission Implementing Regulation (EU) 2016/1799 of October 7, 2016 laying down implementing technical standards (ITS) with regard to the mapping of credit assessments of external credit assessment institutions (ECAIs) for credit risk in accordance with Articles 136(1) and 136(3) of the Capital Requirements Regulation and the Commission Implementing Regulation (EU) 2016/1800 of October 11, 2016 laying down ITS with regard to the allocation of credit assessments of ECAIs to an objective scale of credit quality steps in accordance with the Solvency II Directive were published in the Official Journal of the EU (OJ).

The aim on these ITS is to determine a prudential approach for cases lacking factual evidence and an objective approach for attributing risk weights to the assessment of ECAIs.

Draft versions of these ITS were published in November 2015 by the Joint Committee of the European Supervisory Authorities, who subsequently published an opinion in May 2016 rejecting the proposal by the European Commission to remove the more conservative mapping of ECAI credit assessments that the ESAs had proposed to be applied from January 1, 2019.

The ITS published in the OJ do not contain provisions relating to the introduction of the more conservative mapping, and the Commission has added wording to the recitals to explain its approach with regards to the issue.

The Implementing Regulations will enter into force on November 1, 2016.