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1、2023 capital markets regulatory outlookCENTER forREGULATORY STRATEGYAMERICAS2023 capital markets regulatory outlook2ContentsIntroduction1Regulatory churn 3T+1 Amendments to the definition of broker-dealer Best execution Market structure proposals Reinvigorated enforcement 7Electronic Communications

2、Reg S-P and Reg S-ID actions Digital assets The regulatory horizon 10Electronic recordkeeping Branch office inspections Complex products Looking forward 11Endnotes12Contacts132023 capital markets regulatory outlook1The current volume of proposed regulatory change compares to that of the postDodd-Fra

3、nk period.In 2023,we expect the impacts to ripple across firms and markets in transformational and hard-to-predict ways.We identify three themes that firms may want to consider as they assess the sweeping impacts of this agenda on their business:Regulatory churn:In 2022,capital markets regulatorsdev

4、eloped approaches to emerging technology,outdated rules,and progressive topics.Most ofthe activity was led by the Securities and ExchangeCommission(SEC or Commission),which approved 39proposals to amend existing or create new regulations.Many of these proposals create new reportingrequirements for f

5、irms;others will expand the scope ofentities required to register with the SEC.Additionally,this ambitious agenda has created a tremendousamount of uncertainty and risk for certain firms.Overlapping implementation timelines and anticipatedlegal challenges make it difficult to effectively allocatecom

6、peting resources.Reinvigorated enforcement:In 2022,the number ofenforcement actions brought against capital marketsfirms increased by 9%.1 Regulators also leaned heavilyon existing rules to enforce in areas where newregulations are pending.On the regulatory horizon:Despite the volume of newinitiativ

7、es undertaken by regulators in 2022,we expectseveral more topics to be on the regulatory horizon in2023,including overhauls of firms digital engagementand cybersecurity practices.IntroductionWhile regulatory change should be atop the C-suite and board agenda in 2023,what could be viewed as a tumultu

8、ous period from a regulatory perspective could also be an opportunity to evaluate strategy more broadly.2023 capital markets regulatory outlook222023 capital markets regulatory outlook2023 capital markets regulatory outlook3T+1In the current agenda,T+1 is atypical in the scale of operational impleme

9、ntation effort required and simultaneous unanimous support from the Commission.5 We expect a final rule to advance in 2023 and the industry has already begun preparations.Like previous efforts to reduce the settlement cycle,transitioning to T+1 will require significant operational change,and because

10、 of the heavy volume of regulatory activity,the teams that will be responsible for implementing T+1 are likely to be spread thin by implementing other regulatory mandates as well.Nevertheless,firms will need to press forward with operational changes,including the creation of a project management off

11、ice(PMO),development of implementation plans,continuous oversight of the implementation effort,portfolio manager,trader and client education,internal and industrywide testing,and establishment of a migration command center.Firms may also want to set up overarching PMO teams for the full spectrum of

12、regulatory implementations that will be required in 2023 and conduct assessments to identify synergies,conflicts,and resource constraints to manage risks presented by an array of overlapping implementation efforts.Other steps firms should consider taking include:Establishing a governance structurefo

13、r implementation Obtaining commitment from management forresources dedicated to implementation Conducting analyses to determine the impacts,gaps,and changes required for implementation Developing a road map for implementation,inclusiveof gaps identified through firms analysesRegulatory churnThe larg

14、e number of rule proposals in 2022 casts a shadow of uncertainty over the regulatory agenda in 2023(see Figures 1 and 2).How much of the proposed agenda ultimately will translate into rules that the industry must implement?Two big factors that will likely determine this are(1)SEC leadership and over

15、sight and(2)legal challenges to the agenda.Since the SEC has ledthe financial regulatory agencies in new rulemakingactivity,the approach of its leadership(and specificallythe chair)is paramount.Chair Gensler has identifieda sweeping agenda of regulatory change and likelyintends to follow through on

16、that agenda.However,external pressures on the Commission and the realitiesof effectuating,rather than proposing,change couldforce prioritization.2Oversight of the agency will be impactful and likely politically motivated.With a Republican majority in the House,we expect more scrutiny of the chairs a

17、genda,particularly from the House Financial Services Committee(HFSC).Legal challenges to forthcoming rules,which are inevitable,especially for the most controversial proposals,3 are potentially strengthened by recent Supreme Court rulings.4 Nevertheless,firms should plan as though the proposed agend

18、a will be enacted because,even if only a fraction is finalized,the changes will be impactful,and significant implementation efforts will be required.Additionally,the uncertainty brought on by legal challenges to final rules could linger for yearsplacing firms in an untenable position if they do not

19、prepare for an outcome that favors the regulators.Some proposals,such as reducing the settlement cycle from T+2 to T+1,are not controversial at the Commission and likely will press forward unimpeded.The proposals we discuss in detail here are among the most transformative introduced by the SEC in 20

20、22.2023 capital markets regulatory outlook4Amendments to the definition of broker-dealerTwo“definitional”proposals expand the scope of entities required to register with the SEC.6 In effect,these proposals would stretch the regulatory perimeter to new entities.The second of the two proposals extends

21、 the broker-dealer regulatory regime to market makers not typically under its umbrella by creating two new rules that define qualitative and quantitative standards for determining what constitutes liquidity provision“as part of regular business”under the Exchange Act.7 The proposal further defines“a

22、s part of regular business”in the Exchange Act.In effect,the proposal would require certain principal trading firms,private funds,and other market participants to register as dealers.This would entail registering with both the SEC and a self-regulatory organization and complying with federal securit

23、ies laws,including significant reporting and capital requirements.Some initial actions firms potentially affected by the proposal can consider taking include the following:Work with the firms counsel to interpret andunderstand the proposal Conduct a strategic assessment of opportunities andtrade-off

24、s presented by regulation Identify the current or future entity that would registerand perform a pro forma capital computation Conduct a gap assessment of the technologyand systems design and implementationcapabilities required Conduct a gap assessment of the compliance programagainst leading practi

25、ces and regulatory expectationsIf finalized,firms would have one year to come into compliance following the rules effective date.This places significant urgency on firms to assess their alternatives and develop a plan before the rule is finalized.Best executionIn December 2022,the SEC approved a pro

26、posal that would create an SEC standard of best execution for broker-dealers(as opposed to the existing Financial Industry Regulatory Authority(FINRA)standard).8 The SEC proposal sets similar standards as existing FINRA Rule 5310,including robust policies and procedures regarding best execution and

27、quarterly reviews of customer execution quality.9 The SEC rule would establish more prescriptive standards for broker-dealers receiving payment for order flow and other“conflicted transactions.”Market structure proposalsAlso in December 2022,the SEC approved three significant proposals related to eq

28、uity market structure,which reflect skepticism about the practice of payment for order flow and are intended to improve retail order execution quality.Collectively,the package comprises the most significant proposed changes to market structure in more than a decade.The three proposals are amendments

29、 to Regulation National Market System(Reg NMS),10 the“Order Competition Rule,”11 and new disclosures of order execution information.12 The most controversial of the proposals is likely to be the Order Competition Rule,which would require all market participants,including market makers,to route order

30、s to auctions hosted on national exchanges.The rule could potentially upend the business model of some broker-dealers and market makers if enacted in its current form.The other two proposals,which would amend Reg NMS and create new disclosure around order execution quality,seemingly seek to achieve

31、the same goal of improving retail order execution through less drastic means.One of the proposals also allows for a sub-penny tick size,which potentially could reduce spreads,but may be technologically complex to implement,particularly given the specification of the proposal,which set a minimum pric

32、ing increment relative to a weighted-average spread.Firms have until the end of March to respond to the package of proposals at which point SEC staff will evaluate the comments received before making any recommendations to the Commission for final rules.2023 capital markets regulatory outlook5Capita

33、l Market RuleApproval DateEffective DateComment DeadlineProposal DateReg-flex Action Date2020202120222023Q1Q2Q3Q4Q1Q2Q3Q4M1M2M3M4M5M6M7M8M9M10M11M12M1M2M3M4M5M6M7M8M9M10M11M12Rule 10b5-1 Insider TradingShare repurchase disclosure modernizationErroneously awarded compensationShort interest reportingE

34、xchange traded productsThe Enhancement and Standardization of Climate-Related Disclosures for InvestorsExpanding Clearing of Government SecuritiesExchange Act&Reg ATS AmendmentsProhibition against undue influence over SBSD CCOsReporting large SBS positionsSBS execution/registration®ulation of SBS

35、Fs Reducing Risk in Clearance and Settlement(T+1)Holding foreign companies accountable act disclosure Disclosure of Payments by Resource Extraction Issuers Rule 144 Holding Period and Form 144 FilingsUncleared SBS Margin Phase 6+Rule 18f-4 Use of Derivatives FundsPosition limits for Derivatives Reg

36、SBSR Reporting Clearing Agency Governance and Conflicts of InterestProhibition Against Conflicts of Interest Relating to Certain SecuritizationsReg NMS UpdatesOrder CompetitionBest ExecutionRule 605 reporting2024Q1Q2Q3Q4ProposedFinalImplementationLikely implementation periodFigure 1.Timeline of acti

37、ve SEC capital markets rulesSource:SEC,SEC Unified Agenda,October 2022 Board/corporate governanceFinance/reg reportingRiskOperationsTechnologyComplianceLegalUncleared SBS Margin Phase 6+Consolidated Audit Trail(CAT)Reg SBSR ReportingRule 15c2-11 No Action LetterModernization of Beneficial Ownership

38、ReportingDigital Engagement PracticesElectronic recordkeeping requirementsT+1Exchange Act and Reg ATS AmendmentsTreasury Clearing Cross tradingAmendments to the definition of a broker-dealerShort Interest reportingProhibition against fraud in connection with SBSPosition limitsSecurity-based SWAP mar

39、gin rulesRule 4210 Covered agency transactionsShort reportingOTC Options Transactions ReportingReg Notice 22-16Reg Notice 22-13:Trade Reporting ExemptionTrace Identification of Portfolio TradesAmendments to the Code of ArbitrationReg Notice 22-08Uncleared Swaps/SBS margin phase 6Reg NMS UpdatesOrder

40、 CompetitionBest ExecutionRule 605 reportingRule 18f-4 Use of Derivatives FundsLowest impactHighest impactFigure 2.Relative impact of SEC capital markets agenda on business linesSource:Deloitte,The Active Regulatory Agenda,2022 2023 capital markets regulatory outlook62023 capital markets regulatory

41、outlook2023 capital markets regulatory outlook7Reinvigorated enforcementAfter years of light policing,capital markets regulators have drastically intensified their enforcement efforts.Record fines have been imposed,rigid compliance with existing standards has been required in areas where new rulemak

42、ing is forthcoming,and deeply strategic actions have been taken in areas where the law is hotly contested(e.g.,digital assets).13 When paired with the onslaught of new rulemaking activity,firms government affairs and compliance functions have not been under comparable regulatory pressure for years.E

43、lectronic CommunicationsIn September 2022,the SEC and Commodity Futures Trading Commission(CFTC)levied fines against 11 financial institutions for recordkeeping,monitoring,and supervisory failures associated with business communications conducted outside of permissible channels.The charges primarily

44、 stemmed from employee use of personal devices to discuss business matters,a practice that in many cases violated the SECs and CFTCs record keeping and compliance requirements.Of the entities charged,ten were broker-dealer affiliates and one was an investment adviser affiliate.The fines totaled over

45、$1.8B,ranging from$16M to$225M per institution,and on top of$200M in related fines announced by the regulators in December 2021.14 While some of the alleged behavior may have been egregious or reflective of a culture of general disregard for these recordkeeping policies,regulators expectations place

46、 firms in a challenging position.Firms have,in effect,been designated to supervise their employees use of personal devices in part so that their communications are available to support future regulatory investigations.As the dust settles from this most recent round of fines,many firms are looking to

47、 assess their electronic communications and recordkeeping programs considering regulatory expectations.As part of these efforts,firms should:1.Assess electronic communications policies,procedures,and practices by(a)identifying gaps andopportunities for enhancement;(b)assessing thefeasibility of firm

48、-issued devices(as opposed to bringyour own device policies);(c)polling employees abouttheir communication practices to establish a senseof the firms risk profile;(d)enhancing monitoringand surveillance capabilities;and(e)evaluating theexisting governance model,including escalationprotocols anddisci

49、plinary processes.2.Conduct analyses on historical electroniccommunications via lookback data collections thatcapture historical mobile messages and runningenhanced analytics on available data,such as naturallanguage processing(NLP)and artificial intelligence(AI)models.If these tools already exist,d

50、eterminewhether new alerts or surveillance patternsare needed.3.Evaluate and identify enhancement opportunities inthe current technology infrastructure for electroniccommunications recordkeeping and monitoring,including 1)enhanced solutions to capturecommunications from mobile applications;and 2)aut

51、omated surveillance modules that leverage AI,machine learning,and analytics capabilities to detectissues and instances of non-compliance.2023 capital markets regulatory outlook8Since the SEC is directing serious attention to cybersecurity issues but neither of its new proposed cybersecurity rules sp

52、ecifically target broker-dealers,we expect these programs likely could be under an enforcement microscope for the foreseeable future.Digital assetsThe digital assets industry experienced something of an enforcement blitz in 2022 as the federal government sought to keep pace withand codify its approa

53、ch toinnovation.The SEC generally has led these efforts,but other market regulators,notably the CFTC,have recently redoubled their efforts.President Bidens March 2022“Executive Order on Ensuring Responsible Development of Digital Assets”mobilized a“whole of government”policy response.A sharp contrac

54、tion in asset prices,brought on by a reversal in interest rates,drew deep scrutiny from the government as retail investors suffered steep losses and firms collapsed,taking investor assets with them.These events were reflected in the tone of a series of reports connected to the executive order that w

55、as issued in the fall.For their part,market regulators made concerted efforts to“use the full extent of their existing authorities”to regulate the asset class,as instructed by the executive order.As the Hill and federal government grew in their thinking,their attention also turned to decentralized f

56、inance.Last fall,the CFTC brought its first charges against a decentralized autonomous organization(DAO),and the SEC held public hearings related to an enforcement case that it initiated against a DAO last January.17 Although a significant amount of uncertainty remains,our Digital Assets Policy Prim

57、er outlines the remaining tensions points in the policy framework and likely direction of travel on key issues,including the legal classification of assets and regulatory framework for stablecoins and exchanges.18 In 2023,there will be narrow windows for legislation,but absent that,firms likely will

58、 continue to face enforcement action from the market regulators until they feel that the industry is sufficiently complying with existing regulatory standards.Reg S-P and Reg S-ID actionsAs the SEC intensifies its focus on cybersecurity and likely moves to finalize multiple cyber proposals in 2023,R

59、eg S-P and Reg S-ID remain existing enforcement tools,which we expect will be strictly enforced prior to the new rules going into effect.15 To this end the SEC published a Risk Alert on Reg S-ID in December 2022.Reg S-P requires broker-dealers,investment companies,and investment advisers to“adopt wr

60、itten policies and procedures that address administrative,technical,and physical safeguards for the protection of customer records and information.”16 Reg S-ID,also known as the Identity Theft Red Flags Rule,requires firms to establish“Identity Theft Prevention Programs,”and recent enforcement actio

61、ns emphasize that these programs should be tailored to the firm.In response to this new enforcement focus(the SEC only brought its first Reg S-IDrelated enforcement action in 2018),there areseveral steps that firms can take to refresh their IdentityTheft Red Flag programs:1.Assess the existing progr

62、am to identify any gaps oroutdated components.2.Evaluate all sources where identity theft escalationcould originate.Broadly,these areas include(1)frontoffice and customer support teams,(2)third-partyvendor management teams,(3)cybersecurity andtechnology teams,and(4)anti-money laundering(AML)fraud te

63、ams.3.Ensure that the program is integrated with currentpolicies and procedures for the teams supportingthat support the Identity Theft Prevention Program.4.Ensure that procedures for detecting and mitigatingidentity theft red flags are adequately documented inthe Identity Theft Prevention Program.5

64、.Identify and document escalation channels.6.Create and document a procedure to update theprogram at least annually.2023 capital markets regulatory outlook92023 capital markets regulatory outlook2023 capital markets regulatory outlook10The regulatory horizonMany more significant proposals are forthc

65、oming from the financial regulators.While the SEC is likely to lead the pack in terms of breadth and volume of significant changes,other capital markets regulators are considering impactful issues for the industry as well.These topics on the regulatory horizon include digital engagement,complex prod

66、ucts,and market data fees.Electronic recordkeepingIn October 2022,the SEC adopted amendments to the recordkeeping rules for broker-dealers,security-based swap(SBS)dealers,and major SBS participants.The amendments to SEC rule 17a-4 allow for an“audit-trail”recordkeeping format as an alternative to th

67、e existing requirement for electronic recordkeeping in a write once,read many(WORM)format.19 The amendments to rule 18a-6 create a requirement for SBS entities to maintain electronic records using either an audit-trail or WORM format.The amendments also create a new requirement under rules 17a-4 and

68、 18a-6 for firms to produce electronic records to the SEC“in a reasonably usable format”if requested.Other aspects of the proposal adapt the existing rules to make them either more technology neutral or to reflect current business practices(e.g.,the emergence of cloud storage).The compliance date fo

69、r the amendments to rule 17a-4 is six months after the rules publication in the Federal Register(or approximately May 2023),and for the amendments to rule 18a-6,12 months post-publication,or approximately November 2023.In response to the rule,firms should consider:Conducting a gap assessment of exis

70、tingrecordkeeping systems and processes to assesscompliance with existing recordkeeping requirementsand determine whether improvements or cost savingscan be realized because of the rule amendments.Updating or creating policies and procedures forproviding electronic records to the SEC if requested.Up

71、grading recordkeeping systems and processes asidentified by the gap assessment.Branch office inspectionsThe FINRA is considering updating its definition of a branch office and rules for branch office inspections to reflect trends in remote work and digital transformation.A core issue is the treatmen

72、t of employees homes as branch offices.Like the regulatory expectations around electronic communications,treatment of employees homes as branch offices would extend the regulatory perimeter beyond the traditional image of“the firm.”Complex productsWhile FINRA routinely reviews its rules for complex

73、products,the current review has new significance given the growth of retail investing in complex products.In 2022,FINRA issued a request for information on the suitability of complex products for retail.There are many approaches that the regulator could take,but likely any new regulatory requirement

74、s would prescribe expectations for firms screening and approval processes for complex product trading.Thus,firms may want to think proactively about their processes and ways that they can demonstrate that they are adequately screening customers before allowing them to trade complex products.11Taken

75、in aggregate,the intensity of proposed change to the capital markets regulatory framework is remarkable both in number and significance of rulemaking.The weight of the regulatory agenda will impact firms and potentially financial markets themselves as bedrock practices are reimagined and reshaped in

76、 the coming year against a backdrop of challenging macroeconomic conditions.The risk introduced by the rapid pace and heavy volume of change is not isolated to individual firms but also spread across the industry and,therefore,potentially across the broader economy.This is an important consideration

77、 for the regulators themselves in 2023,as they seek to finalize key tenets of the proposed agenda.For their part,firms need to make investments in the systems and teams that support regulatory requirements despite the massive amount of uncertainty they face.Having a detailed and coherent regulatory

78、strategy likely has not been so important since the passage of Dodd-Frank.While some prioritization is required by all stakeholders(firms and regulators alike),the coming year may eventually be viewed as a deeply transformative period in the regulation of financial services.Therefore,functions navig

79、ating the change need to be given tantamount investment and support.While regulatory change should be atop the C-suite and board agenda in 2023,what could be viewed as a tumultuous period from a regulatory perspective could also be an opportunity to evaluate strategy more broadly.Regulatory change c

80、reates new trade-offs but might present new opportunities as well.An informed debate about the implications of the massive regulatory agenda on the individual firm is likely is helpful for determining an optimal approach.Recognition by leadership that regulation is a core business issue in 2023 will

81、 be essential.Looking forwardThe weight of the regulatory agenda will impact firms and potentially financial markets themselves as bedrock practices are reshaped in the coming year against a backdrop of challenging macroeconomic conditions.2023 capital markets regulatory outlook12Endnotes1.US Securi

82、ties and Exchange Commission(SEC),“SEC announces enforcement results for FY22,”press release,November 15,2022.2.“Commission”refers to the five Commissioners that head the agency,whereas SEC refers to the agency broadly.3.Controversial proposals include the Order Competition proposal approved at the

83、end of 2022,among others.4.US Supreme Court,West Virginia vs.Environmental Protection AgencyWest Virginia et al.v.Environmental Protection Agency et al.,decided June 30,2022.5.SEC,“Shortening the securities transaction settlement cycle,”February 9,2022.6.SEC,“Further definition of“As a part of a reg

84、ular business”in the definition of dealer and government securities dealer,”March 28,2022.7.Ibid.8.SEC,“Regulation best execution,”December 14,2022.9.FINRA“5310.Best execution and Iinterpositioning,”accessed December 18,2022.10.SEC,“Regulation NMS:Minimum pricing increments,access fees,and transpare

85、ncy of better priced orders,”December 14,2022.11.SEC,“Order competition rule,”December 14,2022.12.SEC,“Disclosure of order execution information,”December 14,2022.13.SEC,“Enforcement,”accessed December 18,2022.14.Deloitte,“Meeting regulatory expectations for preserving and monitoring electronic comm

86、unications,”September 30,2022.15.SEC,“Regulation S-P,”accessed December 18,2022;and SEC,“Observations from broker-dealer and investment adviser compliance examinations related to prevention of identity theft under Regulation S-ID,”December 5,2022.16.SEC,“Final Rule:Privacy of Consumer Financial Info

87、rmation(Regulation S-P),”effective November 13,2003;modified November 18,2003.17.SEC,“SEC seeks to stop the registration of misleading crypto asset offerings,”press release,November 18,2022.18.Deloitte,“Digital assets policy primer:Fall 2022,”2022.19.SEC,“Electronic recordkeeping requirements for br

88、oker-dealers,security-based swap dealers,and major security-based swap participants,”October 12,2022.2023 capital markets regulatory outlook13ContactsCenter for Regulatory Strategy Americas Irena Gecas-McCarthyPrincipal|Deloitte&Touche LLP Jim EckenrodeManaging Director|Deloitte Services LP Meghan B

89、urnsResearch Manager|Deloitte Services LP Vik BhatPrincipal|Deloitte&Touche LLPGarrett OBrienPrincipal|Deloitte&Touche LLPRobert WalleyPrincipal|Deloitte&Touche LLPMarjorie ForestalPrincipal|Deloitte&Touche LLElia AlonsoPrincipal|Deloitte&Touche LLPJosh UhlManaging Director|Deloitte&Touche LLP Roy B

90、en-HurManaging Director|Deloitte&Touche LLPPetal WalkerManaging Director|Deloitte&Touche LLPMike JamrozPartner(retired)|Deloitte&Touche LLPSteve AllejukaSenior Manager|Deloitte&Touche LLPCody DevineManager|Deloitte&Touche LLPAndrew KiszManager|Deloitte&Touche LLPMara GaugerManager|Deloitte&Touche LL

91、P2023 capital markets regulatory outlook14About the Center The Deloitte Center for Regulatory Strategy provides valuable insight to help organizations in the financial services industry keep abreast of emerging regulatory and compliance requirements,regulatory implementation leading practices,and ot

92、her regulatory trends.Home to a team of experienced executives,former regulators,and Deloitte professionals with extensive experience solving complex regulatory issues,the Center exists to bring relevant information and specialized perspectives to our clients through a range of media,including thoug

93、ht leadership,research,forums,webcasts,and events.This article contains general information only and Deloitte is not,by means of this article,rendering accounting,business,financial,investment,legal,tax,or other professional advice or services.This article is not a substitute for such professional a

94、dvice or services,nor should it be used as a basis for any decision or action that may affect your business.Before making any decision or taking any action that may affect your business,you should consult a qualified professional adviser.Deloitte shall not be responsible for any loss sustained by an

95、y person who relies on this article.About Deloitte This publication contains general information only and Deloitte is not,by means of this publication,rendering accounting,business,financial,investment,legal,tax,or other professional advice or services.This publication is not a substitute for such p

96、rofessional advice or services,nor should it be used as a basis for any decision or action that may affect your business.Before making any decision or taking any action that may affect your business,you should consult a qualified professional advisor.Deloitte shall not be responsible for any loss su

97、stained by any person who relies on this publication.As used in this document,“Deloitte”means Deloitte&Touche LLP,a subsidiary of Deloitte LLP.Please see for a detailed description of our legal structure.Certain services may not be available to attest clients under the rules and regulations of public accounting.Copyright 2023 Deloitte Development LLC.All rights reserved.CENTER forREGULATORY STRATEGYAMERICAS