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The Commodity Futures Modernization Act of 2000 (CFMA) is United States federal legislation that officially ensured modernized regulation〔http://mercatus.org/publication/did-deregulation-cause-financial-crisis-examining-common-justification-dodd-frank〕 of financial products known as over-the-counter derivatives. It was signed into law on December 21, 2000 by President Bill Clinton. It clarified the law so that most over-the-counter (OTC) derivatives transactions between "sophisticated parties" would not be regulated as "futures" under the Commodity Exchange Act of 1936 (CEA) or as "securities" under the federal securities laws. Instead, the major dealers of those products (banks and securities firms) would continue to have their dealings in OTC derivatives supervised by their federal regulators under general "safety and soundness" standards. The Commodity Futures Trading Commission's (CFTC) desire to have "Functional regulation" of the market was also rejected. Instead, the CFTC would continue to do "entity-based supervision of OTC derivatives dealers."〔Greenspan Testimony to Senate Agriculture Committee in note 18 below. PWG Report defined in note 11 below at 16. Opening statement of Congressman Leach at House Banking Committee June 17, 1998, Hearing referenced in note 20 below at 2. In her (March 21, 1999, speech to the Futures Industry Association ) CFTC Chairwoman Brooksley Born made the distinction between "entity-based supervision", which she viewed as inadequate (because it did not "provide oversight of the market generally") and incomplete (because it only covered the major dealers), with "functional market oversight" by the CFTC, which she viewed as necessary to "provide oversight of the market generally." For a 1999 defense of entity level regulation see Willa E. Gipson, "Are Swap Agreements Securities or Futures?: The Inadequacies of Applying the Traditional Regulatory Approach to OTC Derivatives Transactions", 24 Journal of Corporation Law 379 (Winter 1999) at 416 ("Regulatory issues concerning the swap market can best be addressed by focusing regulation on the market participants rather than by classifying the swap agreements as securities or futures for purposes of regulation.") In a 2009 television interview, former CFTC Chairwoman Brooksley Born gave a less complete description of the regulatory effects of the CFMA in not mentioning the "entity-based supervision" that existed before and continued after the CFMA. 〕 These derivatives, including the credit default swap, are a few of the many causes of the financial crisis of 2008 and the subsequent 2008–2012 global recession.〔(Alan S. Blinder, Alan Blinder: Five Years Later, Financial Lessons Not Learned ), ''Wall Street Journal'', September 10, 2013 (Blinder summarizing causes of the "Great Recession": "Disgracefully bad mortgages created a problem. But wild and woolly customized derivatives—totally unregulated due to the odious Commodity Futures Modernization Act of 2000—blew the problem up into a catastrophe. Derivatives based on mortgages were a principal source of the reckless leverage that backfired so badly during the crisis, imposing huge losses on investors and many financial firms.")〕 == Introduction == Before and after the CFMA, federal banking regulators imposed capital and other requirements on banks that entered into OTC derivatives.〔GAO 1994 Financial Derivatives Report at 74 to 78 for a description of the then existing bank capital requirements for OTC derivatives and 69 to 84 for a description of then existing overall regulatory requirements. GAO Financial Derivatives Report at 53 to 55 for the later "expanded" regulatory capital requirements and 53 to 69 on the overall "improved" oversight of bank OTC derivatives activities. GAO Risk-Based Capital Report at 118 for a detailed description of bank capital requirement computations for OTC derivatives.〕 The United States Securities and Exchange Commission (SEC) and CFTC had limited "risk assessment" authority over OTC derivatives dealers affiliated with securities or commodities brokers and also jointly administered a voluntary program under which the largest securities and commodities firms reported additional information about derivative activities, management controls, risk and capital management, and counterparty exposure policies that were similar to, but more limited than, the requirements for banks.〔GAO 1994 Financial Derivatives Report at 85 to 89 for the then limited oversight of securities and commodity firms (including SEC "risk assessment" authority). 1996 Financial Derivatives Report at 70 to 71, for the establishment of the CFTC's risk assessment program, and at 44 to 46 and 70 to 76 for the establishment of the Derivatives Policy Group (DPG) and the undertakings and reporting to the CFTC and SEC of its member firms.〕 Banks and securities firms were the dominant dealers in the market, with commercial bank dealers holding by far the largest share.〔GAO 1994 Financial Derivatives Report at 11 (commercial bank dealers accounted for about 70% of the total volume at the end of 1992). GAO 1996 Financial Derivatives Report at 27 (for the 15 major dealers tracked by the GAO in the two reports (7 commercial banks, 5 securities firms, and 3 insurance companies) commercial banks accounted for about 69% of total volume each year from 1990 through 1995, securities firms about 27%, and insurance companies about 4%). Ekaterina E. Emm and Gerald D. Gay, "The Global Market for OTC Derivatives: An Analysis of Dealer Holding", September 23, 2003 ("Emma/Gay Global Markets Study") (showing in Table 3 that in 1995 the ten largest dealers held 85% of the US volume, with the 5 commercial banks in the listing holding 57.43% of the total and the 5 listed investment banks holding 27.75% and that in 2000 the ten largest dealers holding 92% of total volume with the 4 listed commercial banks holding 61%, the 4 listed investment banks holding 28%, and the two insurance companies (AIG and General Re) holding just over 3%. PWG Report at 16 (noting most dealers were banks or affiliated with securities firms).〕 To the extent insurance company affiliates acted as dealers of OTC derivatives rather than as counterparties to transactions with banks or security firm affiliates, they had no such federal "safety and soundness" regulation of those activities and typically conducted the activities through London-based affiliates.〔GAO 1994 Financial Derivatives Report at 90 to 91 (concluding "Derivatives dealer affiliates of insurance companies are subject to minimal reporting requirements and no capital requirement" while noting state insurance regulators informed the GAO "derivatives dealer affiliates voluntarily hold capital against derivatives exposures as part of effective risk-management practices.") GAO 1996 Financial Derivatives Report at 80 to 81 (concluding "state insurance regulatory oversight remains unchanged" and noting "although the financial results of derivatives dealer affiliates are part of consolidated insurance company financial reports to regulators, these affiliates continue to have no capital or examination requirements.") GAO 1994 Financial Derivatives Report at 188 (listing AIG, General Re, and Prudential as the three largest insurance company derivatives dealers in 1992.) Emma/Gay Global Markets Study in Table 3 showing AIG And General Re as the largest insurance dealers in 2000. "General Re Securities", Business Week company snapshot ("The Company was incorporated in 1991 (General Re Financial Securities Ltd. ) and is based in London, United Kingdom"). For AIG FP's London-based dealer operation, see note 81 below.〕 The CFMA continued an existing 1992 preemption of state laws enacted in the Futures Trading Practices Act of 1992 which prevented the law from treating eligible OTC derivatives transactions as gambling or otherwise illegal.〔(Analysis of Commodity Futures Modernization Act 2000 - ISDA ). International Swaps and Derivatives Association.〕 It also extended that preemption to security-based derivatives that had previously been excluded from the CEA and its preemption of state law.〔See notes 43 and 80 below.〕 The CFMA, as enacted by President Clinton, went beyond the recommendations of a Presidential Working Group on Financial Markets (PWG) Report titled "Over-the Counter Derivatives and the Commodity Exchange Act." (the "PWG Report〔(【引用サイトリンク】url=http://www.treasury.gov/resource-center/fin-mkts/Documents/PWG%20Report%20Final%20January%2013.pdf )〕 "). President's Working Group on Financial Markets, November 1999: *Lawrence Summers, Treasury *Alan Greenspan, Fed *Arthur Levitt, SEC *William J Rainer, CFTC Although hailed by the PWG on the day of congressional passage as "important legislation" to allow "the United States to maintain its competitive position in the over-the-counter derivative markets", by 2001 the collapse of Enron brought public attention to the CFMA's treatment of energy derivatives in the "Enron Loophole." Following the Federal Reserve's emergency loans to "rescue" American International Group (AIG) in September, 2008, the CFMA has received even more widespread criticism for its treatment of credit default swaps and other OTC derivatives. In 2008 the "Close the Enron Loophole Act" was enacted into law to regulate more extensively "energy trading facilities." On August 11, 2009, the Treasury Department sent Congress draft legislation to implement its proposal to amend the CFMA and other laws to provide "comprehensive regulation of all over-the counter derivatives." This proposal was revised in the House and, in that revised form, passed by the House on December 11, 2009, as part of H.R. 4173 (Wall Street Reform and Consumer Protection Act of 2009). Separate, but similar, proposed legislation was introduced in the Senate and still awaiting Senate action at the time of the House action. 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Commodity Futures Modernization Act of 2000」の詳細全文を読む スポンサード リンク
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