The Securities and Exchange Commission and Commodity Futures Trading Commission have agreed to rewrite federal regulations covering options and related investments, the chairmen of the two agencies announced yesterday.
The closed-door agreement opens the way for sales of several new types of investments, including ones that for the first time will make it possible to profit directly from the rise and fall of the Dow Jones stock index and other popular stock market indicators.
The agreement was announced by John S.R. Shad, chairman of the SEC, and Philip McBride Johnson, chairman of the CFTC, at a joint press conference, the first ever held by the two agencies.
For several years the SEC and CFTC have been feuding over who should police investments in the unmarked territory between the turf of the two agencies.
The jurisdictional dispute centers on options -- investments that are related to both the securities regulated by the SEC and the futures contracts governed by the CFTC.
Shad and Johnson said the SEC and CFTC "have agreed on the jurisdictional bounds of each agency," but the statement they issued made clear the two commissions have not settled all their differences.
The joint statement shows both agencies still claim jurisdiction over some of the same things, including options to buy foreign currencies, government-insured mortgages and investments based on stock market indexes such as the Dow Jones Industrial Average.
Futures contracts and options based on the Dow Jones Industrial Average, Standard & Poor's 500-stock average or other market indicators long have been proposed as a way of letting investors speculate on the overall performance of the stock markets.
An investor who expects the Dow Jones average to rise could buy "Dow Jones Futures" or "Dow Jones Options" at today's price and sell the options or futures contract for a profit if the Dow does go up.
The agreement announced yesterday means the CFTC will be free to authorize trading on commodity markets of a futures contract based on the Dow or any other "broadly based index of securities." But the SEC also will be able to approve Dow Jones options for trading on stock markets.
There are technical and contractual differences between options and futures contracts on the same commodity, but both investments work pretty much the same way as far as the typical customer is concerned.
There are major differences, however, in consumer protection rules required by the two agencies. Shad said he and Johnson "haven't discussed" reconciling those differences.
The SEC's rules require brokers to decide whether a particular investment is "suitable" for the customer, so brokers won't push risky investments such as options onto customers who can't afford the risk of losing their money.
The CFTC, on the other hand, has no customer suitability rule, nor does it have the same requirements for training sales people as the SEC. CFTC Commissioner James Stone, who in the past has pushed for SEC-style customer protection rules at his agency, voted "present" on the interagency agreement because it did not deal with the consumer issue.
Yesterday's announcement followed months of private negotiations between Shad and Johnson and at least two closed-door meetings of the two commissions, which are required by federal sunshine laws to conduct all their business in public.
"Mr. Johnson and I decided we ought to get together and see if we couldn't work things out quietly and without a lot of publicity," Shad said when asked about the unusual secrecy. Both commissions later ratified the deal made by their two chairmen, then voted to implement the agreement. Lawyers for both agencies claimed the sessions were exempt from the sunshine laws.
The agreement itself involves recommendations for legislative action, and implementing the agreement affects pending lawsuits, the attorneys said. Discussions of both legislation and litigation discussions are exempt from the public-meeting requirements.
Both agencies refused yesterday to make public the detailed agreements voted upon by the commissions or to disclose what changes in federal law they are seeking.
Shad and Johnson claimed their agencies don't need congressional approval to redraw the boundries of their jurisdication.