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BRIEFS: With law passed, focus now shifts to regulators

Mon, Jul 26th 2010 12:00 am
Now that financial regulatory reform has been signed into law, business lobbyists have turned their attention to the regulators who will implement the 2,300-page bill.

Congress left the heavy lifting on financial reform to federal agencies. The bill calls for 533 regulatory rulemakings, 60 studies and 93 reports, according to the U.S. Chamber of Commerce.

"We're only in the first round of this fight," said Tom Donohue, the chamber's president and CEO.

Critical questions remain unanswered, including:

• Will the new law make it more expensive for businesses to use derivatives to hedge their risks on fuel and commodity prices?

• How big of an interchange fee will the Federal Reserve allow banks to charge retailers for debit card transactions?

• Will the new Consumer Financial Protection Bureau hurt businesses' access to credit as it makes rules for financial products?

Congress may revisit the bill even before regulators begin their rulemaking process. The bill's language covering derivatives appears to force nonfinancial companies that use derivatives to set aside funds to cover potential losses, even though end users of derivatives were supposed to be exempt from this requirement.

The lack of a clear end-user exemption could cost U.S. companies as much as $1 trillion in capital and liquidity requirements, according to the International Swaps and Derivatives Association.

"This is an area that's still under debate," said Nancy Granese, a senior governmental affairs adviser in the Washington, D.C., office of Hogan Lovells.

Either Congress or the Commodity Futures Trading Commission will have to resolve this issue. Until then, businesses such as airlines and manufacturers that rely on derivatives will have "a hard time moving forward," said Amanda Engstrom, senior vice president of the chamber's Center for Capital Markets.

Card transaction fees up to Federal Reserve

The Federal Reserve has nine months to develop standards for interchange fees on debit card transactions.

Retailers won a major victory over banks on this issue in Congress, which decided that these fees should be "reasonable and proportional to the cost incurred by the issuer with respect to the transaction."

These fees are charged to retailers for the convenience of using electronic methods of payment. For debit cards, they're between 1 percent and 2 percent of a transaction's cost. Retailers have complained for years that these fees are excessive.

The financial reform bill directs the Fed to take into account the cost of fraud-prevention measures when it sets standards for these fees. Beyond that, it's a "pretty open question" as to how the Fed will decide what's reasonable, said Brian Dodge, senior vice president of the Retail Industry Leaders Association.

The National Association of Federal Credit Unions already has asked the Fed "to exercise as much flexibility as possible" on interchange fees. It encouraged the Fed to consider losses due to fraud and a range of other administrative and operational costs.

"A severe and artificial reduction in interchange fees as this legislation may require would prove disastrous for many credit unions," wrote NAFCU President and CEO Fred Becker Jr. in a July 15 letter to Fed Chairman Ben Bernanke.

Dodge, however, noted that Visa recently dropped its debit card interchange fee in Europe to 0.2 percent. That, he said, is evidence that there is plenty of room for reductions in U.S. fees.

The Fed has a lot of leeway, he said, but "whatever they arrive at will be a marked improvement over what we have today."

Bureau to get input of small businesses

Business groups also will focus on the creation of the Consumer Financial Protection Bureau, an independent agency housed at the Fed that will write and enforce regulations on mortgages, credit cards and other financial products.

The head of this bureau will have "virtually unchecked powers," Engstrom said. The chamber wants to make sure this new bureau's regulations don't duplicate or conflict with regulations issued by the Federal Trade Commission or other agencies.

Congress required the new bureau to take into account the impact its new rules would have on small businesses' access to credit. This "will help minimize unintended consequences that can occur with one-size-fits-all regulations," said Barbara Kasoff, president and CEO of Women Impacting Public Policy, which advocates for women business owners.

Kent Hoover is Washington bureau chief for American City Business Journals. E-mail: khoover@bizjournals.com