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Credit ratings agencies are more powerful than regulators – why not harness that?

Tomorrow the House and Senate conference committee is finalizing the language for credit rating agencies.

The push and shove is in full flight…

Senator Al Franken is promoting his amendment to establish a “ratings board” that will assign a specific rater (Nationally Recognized Statistical Rating Organizations [NRSRO]) to rate structured finance deals.

If adopted his amendment will have the effect of creating at least one independent rating for each structured finance deal. This would be very useful for less sophisticated institutional investors who don’t have in-house analytical staff. It would also be a useful check on the major raters.

The Minneapolis Star Tribune is reporting that House Chairman Barney Frank is proposing that the Franken proposal be studied and a report given to Congress on the implementation issues within a year. It sounds likely that a one year study will be written into the law. And the new board will come to life after a year.

Beyond the Franken amendment the House conference members issued some draft changes (page 11) today which incorporated specific language related to issuer disclosure to credit rating agencies. The language directs the SEC to rewrite the rules for issuer disclosure to raters under Regulation FD…  this may be equivalent disclosure… yes it may…

House draft language…

SEC. 939B. ELIMINATION OF EXEMPTION FROM FAIR DISCLOSURE RULE.

” Not later than 90 days after the date of enactment 25 of this subtitle, the Securities Exchange Commission shall revise Regulation FD (17 C.F.R. 243.100) to remove from such regulation the exemption for entities whose primary business is the issuance of credit ratings (17 C.F.R. 4 243.100(b)(2)(iii)).

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The common wisdom is that regulators are the nexus of oversight and power in the financial markets.

That view is unrealistic except in those brief periods when markets endure horrific crashes and legislators and regulators show up on the scene to lament the recklessness, vigorously enforce existing rules and write some new rules.

Think of the flurry of activity after the internet bubble and Enron/Worldcom…

We got Sarbanes-Oxley and the PCAOB to oversee accounting firms… this new law created substantial costs and workloads for smaller public companies and did nothing to restrict dubious accounting methods by large financial firms… big firms simply embraced creative, new methods of evading regulatory constraints… think of Lehman’s use of repo 105 and level 3 accounting for the thinly traded securities on financial firms balance sheets

Crash… regulate… evade… crash… regulate… evade…

Regulators had sufficient tools to rein in rising leverage in the system and opaque OTC products but choose to accommodate the firms they oversaw. Although many describe this as “regulatory capture” there is the other less complicit view expressed by Alan Greenspan that financial firms would prudently manage risk and counterparty relationships as a matter of survival…

Oh how long held beliefs get tossed on the garbage heap to rot… we know now that firms were incentivized to take the largest risks possible and quickly “flow  trade” away credit exposures to other parties in the financial system… except that much risk was retained and concentrated in the largest financial firms…

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What about the credit rating agencies?

Did the rating agencies do a better job of identifying over leveraged firms like Bear Stearns and Lehman Brothers? Or did their collapse create a shock to the markets like the failure of Enron and Worldcom?

The role of the major credit rating agencies in the financial crisis of 2007-2009 is well documented.

The Financial Crisis Inquiry Commission’s hearing two weeks ago in New York clearly demonstrated that analysts at Moody’s (and possibly other rating agencies) were pressured by their management to accommodate underwriter demands and focus on maintaining and growing market share.

“Accommodate the banker” was attested to over and over at the FCIC hearing by past Moody’s employees… because if the banker didn’t like the rating he’d pick up and go to the next rating firm to be “accommodated”… “I’m the banker and I’m shopping for the best rating!”

All this “accommodation” coupled with massive central bank “liquidity” drove the global financial system over the brink… goodbye “AAA’s”… hello global “Great Recession”…

How can rating agencies be used to more effectively to regulate markets and move beyond the “crash, regulate and evade” cycle?

Congress and the SEC have been writing new law and rules that provide greater oversight on raters and seeks to eliminate “ratings shopping”.

The markets, regulators and Congress should all be watching closely this year to see how the new rules are working… the goal is to develop deeper, more stable capital markets… where information is not controlled and bottlenecked by a small number of firms who concentrate and misprice risk…

Time to move ahead… and there will be a time to revisit the topic again… rating the raters…

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The specific amendment sponsored by Senator Al Franken (D-MN).

SA 3808. Mr. FRANKEN (for himself, Mr. Schumer, Mr. Nelson of Florida, Mr. Whitehouse, Mr. Brown of Ohio, and Mr. Murray) submitted an amendment intended to be proposed to amendment SA 3739 proposed by Mr. Reid (for Mr. Dodd (for himself and Mrs. Lincoln)) to the bill S. 3217, 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; which was ordered to lie on the table; as follows:

On page 1006, line 7, strike “Such inaccuracy” and all that follows through line 9, and insert the following: “Such inaccuracy necessitates changes in the way initial credit ratings are assigned.”.

On page 1042, strike lines 17 through 24, and insert the following:

(a) Study.–Not later than 1 year after the Credit Rating Agency Board, as established under section 15E(w) of the Securities Exchange Act of 1934, begins to assign nationally recognized statistical rating organizations to provide initial credit ratings, the Comptroller General of the United States shall conduct a study on the effectiveness of the implementation of the changes made to that section by section 939D of this Act, including the selection method by which the Credit Rating Agency Board assigns nationally recognized statistical rating organizations to provide initial credit ratings.

On page 1044, between lines 2 and 3, insert the following:

SEC. 939D. INITIAL CREDIT RATING ASSIGNMENTS.

Section 15E of the Securities Exchange Act of 1934 (15 U.S.C. 78o-7), as amended by this Act, is amended by adding at the end the following:

“(w) Initial Credit Rating Assignments.–

“(1) DEFINITIONS.–In this subsection the following definitions shall apply:

“(A) BOARD.–The term `Board’ means the Credit Rating Agency Board established under paragraph (2).

“(B) QUALIFIED NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION.–The term `qualified nationally recognized statistical rating organization’, with respect to a category of structured finance products, means a nationally recognized statistical rating organization that the Commission determines, under paragraph (3)(B), to be qualified to issue credit ratings with respect to such category.

“(C) REGULATIONS.–

“(i) CATEGORY OF STRUCTURED FINANCE PRODUCTS.–

“(I) IN GENERAL.–The term `category of structured finance products’–

“(aa) shall include any asset backed security and any structured product based on an asset-backed security; and

“(bb) shall be further defined and expanded by the Commission, by rule, as necessary.

“(II) CONSIDERATIONS.–In issuing the regulations required subclause (I), the Commission shall consider–

“(aa) the types of issuers that issue structured finance products;

“(bb) the types of investors who purchase structured finance products;

“(cc) the different categories of structured finance products according to–

“(AA) the types of capital flow and legal structure used;

“(BB) the types of underlying products used; and

“(CC) the types of terms used in debt securities;

“(dd) the different values of debt securities; and

“(ee) the different numbers of units of debt securities that are issued together.

“(ii) REASONABLE FEE.–The Board shall issue regulations to define the term `reasonable fee’.

“(2) CREDIT RATING AGENCY BOARD.–

“(A) IN GENERAL.–Not later than 180 days after the date of enactment of the Restoring American Financial Stability Act of 2010, the Commission shall–

“(i) establish the Credit Rating Agency Board, which shall be a self-regulatory organization;

“(ii) subject to subparagraph (C), select the initial members of the Board; and

“(iii) establish a schedule to ensure that the Board begins assigning qualified nationally recognized statistical rating organizations to provide initial ratings not later than 1 year after the selection of the members of the Board.

“(B) SCHEDULE.–The schedule established under subparagraph (A)(iii) shall prescribe when–

“(i) the Board will conduct a study of the securitization and ratings process and provide recommendations to the Commission;

“(ii) the Commission will issue rules and regulations under this section;

“(iii) the Board may issue rules under this subsection; and

“(iv) the Board will–

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“(I) begin accepting applications to select qualified national recognized statistical rating organizations; and

“(II) begin assigning qualified national recognized statistical rating organizations to provide initial ratings.

“(C) MEMBERSHIP.–

“(i) IN GENERAL.–The Board shall initially be composed of an odd number of members selected from the industry, with the total numerical membership of the Board to be determined by the Commission.

“(ii) SPECIFICATIONS.–Of the members initially selected to serve on the Board–

“(I) not less than a majority of the members shall be representatives of the investor industry, including both institutional and retail investors who do not represent issuers;

“(II) not less than 1 member should be a representative of the issuer industry;

“(III) not less than 1 member should be a representative of the credit rating agency industry; and

“(IV) not less than 1 member should be an independent member.

“(iii) TERMS.–Initial members shall be appointed by the Commission for a term of 4 years.

“(iv) NOMINATION AND ELECTION OF MEMBERS.–

“(I) IN GENERAL.–Prior to the expiration of the terms of office of the initial members, the Commission shall establish fair procedures for the nomination and election of future members of the Board.

“(II) MODIFICATIONS OF THE BOARD.–Prior to the expiration of the terms of office of the initial members, the Commission–

“(aa) may increase the size of the board to a larger odd number and adjust the length of future terms; and

“(bb) shall retain the composition of members described in clause (ii).

“(v) RESPONSIBILITIES OF MEMBERS.–Members shall perform, at a minimum, the duties described in this subsection.

“(vi) RULEMAKING AUTHORITY.–The Commission shall, if it determines necessary and appropriate, issue further rules and regulations on the composition of the membership of the Board and the responsibilities of the members.

“(D) OTHER AUTHORITIES OF THE BOARD.–The Board shall have the authority to levy fees from qualified nationally recognized statistical rating organization applicants, and periodically from qualified nationally recognized statistical rating organizations as necessary to fund expenses of the Board.

“(E) REGULATION.–The Commission has the authority to regulate the activities of the Board, and issue any further regulations of the Board it deems necessary, not in contravention with the intent of this section.

“(3) BOARD SELECTION OF QUALIFIED NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATION.–

“(A) APPLICATION.–

“(i) IN GENERAL.–A nationally recognized statistical rating organization may submit an application to the Board, in such form and manner as the Board may require, to become a qualified nationally recognized statistical rating organization with respect to a category of structured financial products.

“(ii) CONTENTS.–An application submitted under clause (i) shall contain–

“(I) information regarding the institutional and technical capacity of the nationally recognized statistical rating organization to issue credit ratings;

“(II) information on whether the nationally recognized statistical rating organization has been exempted by the Commission from any requirements under any other provision of this section; and

“(III) any additional information the Board may require.

“(iii) REJECTION OF APPLICATIONS.–The Board may reject an application submitted under this paragraph if the nationally recognized statistical rating organization has been exempted by the Commission from any requirements under any other provision of this section.

“(B) SELECTION.–The Board shall select qualified national recognized statistical rating organizations with respect to each category of structured finance products from among nationally recognized statistical rating organizations that submit applications under subparagraph (A).

“(C) RETENTION OF STATUS AND OBLIGATIONS AFTER SELECTION.–An entity selected as a qualified nationally recognized statistical rating organization shall retain its status and obligations under the law as a nationally recognized statistical rating organization, and nothing in this subsection grants authority to the Commission or the Board to exempt qualified nationally recognized statistical rating organizations from obligations or requirements otherwise imposed by Federal law on nationally recognized statistical rating organizations

“(4) REQUESTING AN INITIAL CREDIT RATING.–An issuer that seeks an initial credit rating for a structured finance product–

“(A) may not request an initial credit rating from a nationally recognized statistical rating organization; and

“(B) shall submit a request for an initial credit rating to the Board, in such form and manner as the Board may prescribe.

“(5) ASSIGNMENT OF RATING DUTIES.–

“(A) IN GENERAL.–For each request received by the Board under paragraph (4)(B), the Board shall select a qualified nationally recognized statistical rating organization to provide the initial credit rating to the issuer.

“(B) METHOD OF SELECTION.–

“(i) IN GENERAL.–The Board shall–

“(I) evaluate a number of selection methods, including a lottery or rotating assignment system, incorporating the factors described in clause (ii), to reduce the conflicts of interest that exist under the issuer-pays model; and

“(II) prescribe and publish the selection method to be used under subparagraph (A).

“(ii) CONSIDERATION.–In evaluating a selection method described in clause (i)(I), the Board shall consider–

“(I) the information submitted by the qualified nationally recognized statistical rating organization under paragraph (3)(A)(ii) regarding the institutional and technical capacity of the qualified nationally recognized statistical rating organization to issue credit ratings;

“(II) evaluations conducted under paragraph (6);

“(III) formal feedback from institutional and retail investors; and

“(IV) information from subclauses (I) and (II) to implement a mechanism which increases or decreases assignments based on past performance.

“(iii) PROHIBITION.–The Board, in choosing a selection method, may not use a method that would allow for the solicitation or consideration of the preferred national recognized statistical rating organizations of the issuer.

“(iv) ADJUSTMENT OF PROCESS.–The Board shall issue rules describing the process by which it can modify the assignment process described in clause (i).

“(C) RIGHT OF REFUSAL.–

“(i) REFUSAL.–A qualified nationally recognized statistical rating organization selected under subparagraph (A) may refuse to accept a selection for a particular request by–

“(I) notifying the Board of such refusal; and

“(II) submitting to the Board a written explanation of the refusal.

“(ii) SELECTION.–Upon receipt of a notification under clause (i), the Board shall make an additional selection under subparagraph (A).

“(iii) INSPECTION REPORTS.–The Board shall annually submit any explanations of refusals received under clause (i)(II) to the Commission, and such explanatory submissions shall be published in the annual inspection reports required under subsection (p)(3)(C).

“(6) EVALUATION OF PERFORMANCE.–

“(A) IN GENERAL.–The Board shall prescribe rules by which the Board will evaluate the performance of each qualified nationally recognized statistical rating organization, including rules that require, at a minimum, an annual evaluation of each qualified nationally recognized statistical rating organization.

“(B) CONSIDERATIONS.–The Board, in conducting an evaluation under subparagraph (A), shall consider–

“(i) the results of the annual examination conducted under subsection (p)(3);

“(ii) surveillance of credit ratings conducted by the qualified nationally recognized statistical rating organization after the credit ratings are issued, including–

“(I) how the rated instruments perform;

“(II) the accuracy of the ratings provided by the qualified nationally recognized statistical rating organization as compared to the other nationally recognized statistical rating organizations; and

“(III) the effectiveness of the methodologies used by the qualified nationally recognized statistical rating organization; and

“(iii) any additional factors the Board determines to be relevant.

“(C) REQUEST FOR REEVALUATION.–Subject to rules prescribed by the Board, and not less frequently than once a year, a qualified nationally recognized statistical rating organization may request that the Board conduct an evaluation under this paragraph.

“(D) DISCLOSURE.–The Board shall make the evaluations conducted under this paragraph available to Congress.

“(7) RATING FEES CHARGED TO ISSUERS.–

“(A) LIMITED TO REASONABLE FEES.–A qualified nationally recognized statistical rating organization shall charge an issuer a reasonable fee, as determined by the Commission, for an initial credit rating provided under this section.

“(B) FEES.–Fees may be determined by the qualified national recognized statistical rating organizations unless the Board determines it is necessary to issue rules on fees.

“(8) NO PROHIBITION ON ADDITIONAL RATINGS.–Nothing in this section shall prohibit an issuer from requesting or receiving additional credit ratings with respect to a debt security, if the initial credit rating is provided in accordance with this section.

“(9) NO PROHIBITION ON INDEPENDENT RATINGS OFFERED BY NATIONALLY RECOGNIZED STATISTICAL RATING ORGANIZATIONS.–

“(A) IN GENERAL.–Nothing in this section shall prohibit a nationally recognized statistical rating organization from independently providing a credit rating with respect to a debt security, if–

“(i) the nationally recognized statistical rating organization does not enter into a contract with the issuer of the debt security to provide the initial credit rating; and

“(ii) the nationally recognized statistical rating organization is not paid by the issuer of the debt security to provide the initial credit rating.

“(B) RULE OF CONSTRUCTION.–For purposes of this section, a credit rating described in

subparagraph (A) may not be construed to be an initial credit rating.

“(10) PUBLIC COMMUNICATIONS.–Any communications made with the public by an issuer with respect to the credit rating of a debt security shall clearly specify whether the credit rating was made by–

“(A) a qualified nationally recognized statistical rating organization selected under paragraph (5)(A) to provide the initial credit rating for such debt security; or

“(B) a nationally recognized statistical rating organization not selected under paragraph (5)(A).

“(11) PROHIBITION ON MISREPRESENTATION.–With respect to a debt security, it shall be unlawful for any person to misrepresent any subsequent credit rating provided for such debt security as an initial credit rating provided for such debt security by a qualified nationally recognized statistical rating organization selected under paragraph (5)(A).

“(12) INITIAL CREDIT RATING REVISION AFTER MATERIAL CHANGE IN CIRCUMSTANCE.–If the Board determines that it is necessary or appropriate in the public interest or for the protection of investors, the Board may issue regulations requiring that an issuer that has received an initial credit rating under this subsection request a revised initial credit rating, using the same method as provided under paragraph (4), each time the issuer experiences a material change in circumstances, as defined by the Board.

“(13) CONFLICTS.–

“(A) MEMBERS OR EMPLOYEES OF THE BOARD.–

“(i) LOAN OF MONEY OR SECURITIES PROHIBITED.–

“(I) IN GENERAL.–A member or employee of the Board shall not accept any loan of money or securities, or anything above nominal value, from any nationally recognized statistical rating organization, issuer, or investor.

“(II) EXCEPTION.–The prohibition in subclause (I) does not apply to a loan made in the context of disclosed, routine banking and brokerage agreements, or a loan that is clearly motivated by a personal or family relationship.

“(ii) EMPLOYMENT NEGOTIATIONS PROHIBITION.–A member or employee of the Board shall not engage in employment negotiations with any nationally recognized statistical rating organization, issuer, or investor, unless the member or employee–

“(I) discloses the negotiations immediately upon initiation of the negotiations; and

“(II) recuses himself from all proceedings concerning the entity involved in the negotiations until termination of negotiations or until termination of his employment by the Board, if an offer of employment is accepted.

“(B) CREDIT ANALYSTS.–

“(i) IN GENERAL.–A credit analyst of a qualified nationally recognized statistical rating organization shall not accept any loan of money or securities, or anything above nominal value, from any issuer or investor.

“(ii) EXCEPTION.–The prohibition described in clause (i) does not apply to a loan made in the context of disclosed, routine banking and brokerage agreements, or a loan that is clearly motivated by a personal or family relationship.

“(14) EVALUATION OF CREDIT RATING AGENCY BOARD.–Not later than 5 years after the date that the Board begins assigning qualified nationally recognized statistical rating organizations to provide initial ratings, the Commission shall submit to Congress a report that provides recommendations of–

“(A) the continuation of the Board;

“(B) any modification to the procedures of the Board; and

“(C) modifications to the provisions in this subsection.”.

http://www.huffingtonpost.com/2010/06/02/questions-raised-as-feds_n_598498.html#