TESTIMONY OF

ROGER L. ANDERSON
DEPUTY ASSISTANT SECRETARY for FEDERAL FINANCE
DEPARTMENT OF THE TREASURY

before the SENATE COMMITTEE on AGRICULTURE, NUTRITION, and FORESTRY

on the TREASURY AMENDMENT to the COMMODITY EXCHANGE ACT

Tuesday, February 11, 1997

I welcome this opportunity to speak to you today about the Treasury Amendment to the Commodity Exchange Act (CEA). This is an important issue for many different kinds of financial firms, their customers, and the government entities that regulate them.

The Treasury Amendment provides an exemption from the CEA for off-exchange transactions in foreign currency, goverrunent securities and certain other financial instruments. The language of the Treasury Amendment was proposed, as its name implies, by the Treasury Department. Congress incorporated this language virtually unchanged into the CEA in 1974.

Treasury's goal in proposing the amendment was to protect the immense and important foreign exchange and government securities markets from potentially burdensome or overlapping regulation.

In a letter to the Chairman of the Senate Agriculture Committee in 1974, Treasury noted that the foreign currency market in the United States consisted primarily of sophisticated players, such as banks and dealers, and that many of the participants in this market were already regulated. Therefore, Treasury argued, it would be inappropriate to impose an additional layer of CFTC regulation on what was a highly complex, and highly successful, function. Treasury noted in its letter that the foreign currency market "has proved highly efficient in serving the needs of international business in hedging the risks that stem from foreign exchange rate movements." (S. Rep. No. 1131, 93rd Cong., 2d Sess. 50, 1974)

Treasury believes that the argument for protecting the foreign currency and government securities markets from unnecessary regulation and uncertainty is, if anything, more compelling today than it was in 1974. According to the most recent triennial survey conducted by the Bank for International Settlements (BIS), the average daily turnover in the global foreign exchange markets was $1.2 trillion in April, 1995. And, I would note, these survey results include only the "traditional" foreign exchange instruments (spots, forwards and swaps), and therefore do not include data on a wide range of over-the-counter and exchange-traded derivatives in financial products. In recent years, the global market for just "traditional" foreign exchange instruments expanded at the rate of about 30% percent during the three-year period which ended in April, 1995.

According to the same BIS survey, United States financial centers enjoyed a 16% share of the business in these global markets for spots, outright forwards and foreign exchange swaps. This can be compared to Britain's 30% share, and Japan's 10% share. The trend in recent years has been for Britain's share to increase (up from 27% in 1989), while that of the U.S. has remained stable.

These foreign currency and government securities markets have proved extremely useful to U.S. businesses, including small and large importers and exporters.

However, the Treasury Amendment has been the focus of extensive argument in recent court cases, including matters currently before the Supreme Court in the Dunn case. The resulting legal uncertainty over the scope of the Treasury Amendment may have had the effect of inhibiting the development of new hedging products for use by small businesses.

We are not here to restate the legal arguments about the current Treasury Amendment language. Our focus is to resolve the uncertainty in a manner that addresses the extant enforcement problem -- providing the CFTC with explicit authority to prosecute those who defraud unsophisticated retail customers in foreign currency derivatives transactions -- without burdening successful, efficient markets.

The CFTC has long expressed its concern with our interpretation of the Treasury Amendment on its ability to prosecute foreign exchange bucket shops. Treasury has also long acknowledged that it may be appropriate to ensure that the CFTC has enforcement authority to prosecute bucket shops or boiler rooms in foreign currency derivative transactions. The stated goal behind the CFTC's recent enforcement cases is one Treasury endorses.

However, Treasury does not believe it is good public policy to pursue discrete enforcement actions in a way that creates new uncertainty for broad groups of market participants.

Treasury does believe that it is important to maintain the original goals of the Treasury Amendment. Treasury also believes that the scope of the changes currently being sought by the CFTC go beyond what is necessary to prosecute those who perpetrate fraud against small investors. These changes would create unnecessary and overlapping layers of regulation in segments of the financial markets where large institutional investors are the only participants, and in market segments where no fraud has been proven.

Treasury and the CFTC began negotiating in December 1995, to try to reach agreement on what the Treasury Amendment should cover. As the basis of our negotiations, we put aside our disagreements over how to interpret the existing language of the Treasury Amendment, including matters currently before the Supreme Court in the Dunn case.

We appreciate the efforts of former CFTC Chair Mary Shapiro, for starting the discussions, and of Commissioner John Tull, who, when he was Acting Chair of the CFTC, pushed the discussions. Current CFTC Chair Brooksley Bom has also been very supportive in continuing the discussions.

While our discussions with the CFTC did not result in a legislative package on which both agencies can agree, the process was very useful. Treasury and the CFTC learned a great deal about each other's concerns.

Treasury and the CFTC staff also managed to reach agreement on several issues, some of which are reflected in the legislative proposals prepared by Treasury and the CFTC. The areas of common ground are the following:

Futures and options should be treated the same for Treasury Amendment purposes.

The when-issued market for goverrunent securities is not subject to CFTC jurisdiction.

The OTC foreign exchange derivatives market is a valuable asset to this country and contributes to its economic health. Its presence in this country should not be discouraged.

Foreign currency bucket shops should not be allowed to escape federal anti- fraud enforcement.

There should be federal recourse for retail customers defi7auded in foreign exchange derivatives transactions.

In the foreign exchange derivatives area, the CFTC is an appropriate entity to pursue retail fraud committed by entities that are not otherwise subject to federal regulation.

Other problems or uncertainties shouldn't be created in the course of fixing existing problems.

But while there is some common ground between Treasury and the CFTC, there are still many areas of disagreement. As the discussions between Treasury and the CFTC progressed, some basic differences in approach and philosophy concerning the Treasury Amendment became clear. In particular, two basic differences made it very difficult to reach agreement on a comprehensive legislative package.

First, Treasury and the CFTC came to the discussions with different starting points, based on our different interpretations of the current language of the Treasury Amendment. Treasury interprets the Treasury Amendment as a broad exemption from CFTC regulation of all transactions in the financial instruments listed in the Amendment (including futures and options), regardless of the nature or identities of the parties engaged in the transactions. Given this starting point, Treasury views its legislative proposal as granting explicit authority to the CFTC in a way which will enable it to pursue fraud actions against those who prey on retail customers in foreign exchange derivatives transactions. By contrast, the CFTC views the current Treasury Amendment as inapplicable to transactions involving retail customers. It therefore views the very specific language contained in the Treasury proposal as a limitation on existing CFTC authority. As a result, when Treasury and the CFTC came together to discuss the scope of the CFTC's authority, the CFTC asked why what it perceives as its existing authority should be cut back, and the Treasury questioned why the CFTC needs more authority than necessary to address the problems of fraud in the retail market for foreign currency derivative instruments.

Second, the CFTC approaches Treasury Amendment issues as a regulatory and enforcement agency responsible for protecting "retail investors," whereas Treasury approaches these same issues from the standpoint of a policy agency focussed on promoting market efficiency, liquidity, depth and economic growth. Thus, the CFTC has sought varying degrees of enforcement authority in broad market segments, even where no problems have been demonstrated to exist currently. The Treasury looks at the issues from the perspective of the market participants, which to date are largely institutions that have abided by, and want to keep abiding by, the rules of fair play. Treasury is trying to ensure that participants in U.S. financial markets aren't adversely affected by unclear or unnecessary regulation.

The Treasury is sympathetic to the CFTC's enforcement concerns. That is why we have made our proposal. Nevertheless, Treasury does not see a need for overbroad legislation.

In the past few weeks, the CFTC and Treasury have delivered to this Committee separate legislative proposals to amend the Treasury Amendment. Chairman Lugar and Senators Harkin and Leahy have introduced S. 257 to amend portions of the Commodity Exchange Act, including the Treasury Amendment. I understand that various trade associations may also present legislative proposals.

The proposal submitted by the Treasury Department addresses the problem of retail fraud in the foreign exchange derivatives markets in a clear and direct manner, without creating new ambiguities, imposing burdens on markets where no problems have been shown to exist, or unnecessarily increasing the regulatory burden of entities that are already subject to Federal regulation. Treasury believes that the CFTC's legislative proposal would increase, not reduce, the current envirom-nent of legal uncertainty that surrounds derivatives transactions in foreign currency and government securities.

I will not go into the details of Treasury's proposal, but I would like to highlight the major concerns Treasury has with the CFTC's proposal. There are four.

First, Treasury sees no need whatsoever for the CFTC to regulate government securities transactions other than on organized futures exchanges. This market is already adequately regulated under the securities laws by the SEC and Treasury. Increased regulation or increased legal uncertainty could increase market participants' costs, which would result in higher interest costs for the government and the taxpayers. Indeed, when it enacted the Government Securities Act of 1986, Congress recognized that unnecessary or inflexible regulation could increase the govermnent's borrowing costs, and it acknowledged the need to preserve both the efficiency and the integrity of that market.

The second key difference between Treasury and the CFTC concerns the treatment of the over-the-counter institutional market for foreign exchange derivatives. In principle, the CFTC has acknowledged that it agrees with Treasury that the "interbank market [should] remain exempt from regulation under the CEA." These markets function well; no problems have been shown to exist; and the participants are well equipped to assert their own rights if wronged. Under the current Treasury Amendment, this market is entirely exempt from the CEA.

However, the CFTC's draft legislation does not provide an unambiguous exemption for this market. Rather, the CFTC's exemption depends on a judgment call, presumably to be made by the CFTC, that other Federal regulatory schemes do not adequately address fraud and price manipulation. The CFTC's proposed legislation, if enacted, would likely result in continued uncertainty concerning the scope of exempted activities, and in more litigation. Such uncertainty could harm these important markets and could cause an increasing share to move overseas.

Treasury's proposal specifically gives the CFTC the authority to pursue those who commit fraud on retail customers in foreign currency futures and options transactions, if they are not otherwise federally regulated. By contrast, the CFTC's proposal would allow it to prohibit all off-exchange foreign currency transactions conducted with retail customers, even if sold by a bank.

Our third major concern is that we see no need for the CFTC to prohibit all these transactions. There are legitimate reasons for such over-the-counter transactions. For example, a small cheese importer that wants to hedge its exposure to Danish kroner cannot find that protection in an exchange-traded instrument, because currently there are no Danish kroner contracts.

Our fourth major concern is that we see no need for the CFTC to have jurisdiction over the retail activities of banks, broker-dealers, and investment companies. There is no evidence that the existing federal regulation of such institutions is inadequate.

The CFTC's proposal strongly favors exchange trading. Undoubtedly, various financial futures and options have thrived in that environment. A significant share of the business of the Chicago Board of Trade is represented by government securities contracts, and Eurodollar contracts represent a significant share of business on the Chicago Mercantile Exchange. However, there is a fundamental question as to whether exchange trading is appropriate for all transactions involving financial instruments that, in the view of the CFTC, may constitute futures contracts or options. One answer to this question can be found in the actions of the financial markets themselves: the notional amount of foreign exchange transactions traded over-thecounter is several orders of magnitude greater than that traded on exchanges. There are competitive reasons why that business is done off the exchanges. Similarly, there are competitive reasons why the business that is done on the exchanges is done there.

Our discussions with the CFTC continue, notwithstanding our recent legislative proposals. We look forward to working with this Committee, as well as with the CFTC, the banking agencies, the SEC, and market participants on these issues.

The CFTC has stated that its principal concern over our interpretation of the Treasury Amendment is with retail fi7aud. Retail fraud in foreign exchange derivatives has been the basis for several enforcement actions that the CFTC has recently brought. The Treasury Department has long acknowledged that the CFTC should have enforcement authority over those who are not otherwise adequately regulated and who defraud unsophisticated investors in foreign exchange transactions. We should remain focussed on that concern. There are those who have questioned whether Treasury's proposal covers all potential wrongdoings. Retail fraud in foreign exchange derivative transactions is the only enforcement problem that has been shown to exist. Treasury believes that a narrowly crafted solution to that problem is appropriate.