Corporate end-users prepare to rescue their exemption from central clearing and reporting requirements.
Until recent developments intervened, corporates concerned with OTC derivatives reform legislation were crossing their fingers that the Senate Agricultural Committee’s view, which was more corporate exemption-friendly than that of the Finance or Banking Committees’, would win the day.
However, now it seems that the Obama White House view may prevail, which means the new rules could arguably be even less likely to condone anything but a very narrow exemption from derivatives reforms.
Still, various legislation drafts in the Senate, including The Restoring American Financial Stability Act of 2010 (“RAFSA”), introduced by Senator Dodd (D-CT), will be subject to further lobbying. So some exemption remains a possibility.
Corporate end-users in the driver’s seat
Meanwhile, corporate end-user groups are reported to be descending on Washington next week to lobby against the new adverse turn in the legislation’s path. For good reason: dealer bank efforts are increasingly becoming counterproductive as many observers feared. The politics of doing something that smacks of aiding Wall Street has not improved, and as dealer banks report ever improving financial numbers fears of imposing new regulations on them ebb. Plus, with health care passed, the Obama administration appears to be emboldened to reach for more, rather than be satisfied with its big win.
So, with the political winds blowing in the direction of more regulation, and more regulation seen to reign in big banks, the onus is on non-financial corporates to be more aggressive in pointing out adverse economic consequences. And this goes well beyond derivatives regs to financial reforms generally, as well as to tax and accounting issues coming down the pike soon.
On the derivatives front, the trick for corporate end-users is to identify language that will allow corporate hedging to be exempt, emphasizing jobs if possible, without creating loopholes for dealers to exploit. In an April 13 letter responding to critics of the Ag Committee’s stance, Chairman Blanche Lincoln (D-AR) indicated a window is still open along such lines:
Again, I agree with you whole heartedly that the end user clearing exemption is a very important issue as recognized by its inclusion in every regulatory reform proposal to date. Commercial entities, as opposed to financial firms, have strong arguments regarding regulatory costs and their impact on keeping jobs in the United States. My legislation will be surgical in its scope by avoiding loopholes and ensuring that tough regulations on Wall Street don’t cost us jobs on Main Street. I agree with you that only commercial firms which are solely hedging their own commercial risks should be able to use some limited exemption. It is very clear to me that the opportunities for abuse in this area are readily apparent. My proposal, unlike others, will ensure that this is narrowly tailored by providing regulators with the authority to punish entities who abuse this exemption. In an effort to make it abundantly clear; that this exemption is not for Wall Street entities, I have a provision that identifies those financial firms who are prohibited from using the clearing exemption.
A differing view in Europe
Another obstruction to the corporate exemption window closing is the acknowledgement by the EU that a corporate exemption for its OTC derivatives reforms should be considered.
Successful lobbying by corporate end-user groups in Europe, including the European Association of Corporate Treasurers, have helped ensure this.
However, like in the US, a blanket exemption is unlikely. European Commission regulators are meeting today to consider next steps for their own OTC derivatives legislation expected over the summer. Reports are that the EC is favoring a threshold system, whereby OTC derivatives activity above a certain threshold would subject non-financial end-users to investigation and the need to document for regulators the size and nature of their derivatives activities in more detail.
Coupled with this, there might also be a threshold for which central clearing would become required. Given problems with creating regulatory definitions of hedging, end-users in the US might want to follow this lead. In any case, with the tide turning on derivatives legislation—now is the time to act.