2013-30974

Federal Register, Volume 78 Issue 249 (Friday, December 27, 2013)[Federal Register Volume 78, Number 249 (Friday, December 27, 2013)]

[Notices]

[Pages 78864-78878]

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

[FR Doc No: 2013-30974]

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COMMODITY FUTURES TRADING COMMISSION

Comparability Determination for Australia: Certain Entity-Level

Requirements

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of Comparability Determination for Certain Requirements

under Australian Regulation.

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SUMMARY: The following is the analysis and determination of the

Commodity Futures Trading Commission (``Commission'') regarding certain

parts of a request by the Australian Bankers Association (``ABA'') that

the Commission determine that laws and regulations applicable in in the

Commonwealth of Australia (``Australia'') provide a sufficient basis

for an affirmative finding of comparability with respect to the

following regulatory obligations applicable to swap dealers (``SDs'')

and major swap participants (``MSPs'') registered with the Commission:

(i) Chief compliance officer; (ii) risk management; and (iii) swap data

recordkeeping (collectively, the ``Internal Business Conduct

Requirements'').

DATES: Effective Date: This determination will become effective

immediately upon publication in the Federal Register.

FOR FURTHER INFORMATION CONTACT: Gary Barnett, Director, 202-418-5977,

[email protected], Frank Fisanich, Chief Counsel, 202-418-5949,

[email protected], Adam Kezsbom, Special Counsel, 202-418-5372,

[email protected], Israel Goodman, Special Counsel, 202-418-6715,

[email protected], Division of Swap Dealer and Intermediary Oversight,

Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st

Street, NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Introduction

On July 26, 2013, the Commission published in the Federal Register

its ``Interpretive Guidance and Policy Statement Regarding Compliance

with Certain Swap Regulations'' (the ``Guidance'').\1\ In the Guidance,

the Commission set forth its interpretation of the manner in which it

believes that section 2(i) of the Commodity Exchange Act (``CEA'')

applies Title VII's swap provisions to activities outside the U.S. and

informed the public of some of the policies that it expects to follow,

generally speaking, in applying Title VII and certain Commission

regulations in contexts covered by section 2(i). Among other matters,

the Guidance generally described the policy and procedural framework

under which the Commission would consider a substituted compliance

program with respect to Commission regulations applicable to entities

located outside the U.S. Specifically, the Commission addressed a

recognition program where compliance with a comparable regulatory

requirement of a foreign jurisdiction would serve as a reasonable

substitute for compliance with the attendant requirements of the CEA

and the Commission's regulations promulgated thereunder.

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\1\ 78 FR 45292 (July 26, 2013). The Commission originally

published proposed and further proposed guidance on July 12, 2012

and January 7, 2013, respectively. See Cross-Border Application of

Certain Swaps Provisions of the Commodity Exchange Act, 77 FR 41214

(July 12, 2012) and Further Proposed Guidance Regarding Compliance

with Certain Swap Regulations, 78 FR 909 (Jan. 7, 2013).

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In addition to the Guidance, on July 22, 2013, the Commission

issued the Exemptive Order Regarding Compliance with Certain Swap

Regulations (the

[[Page 78865]]

``Exemptive Order'').\2\ Among other things, the Exemptive Order

provided time for the Commission to consider substituted compliance

with respect to six jurisdictions where non-U.S. SDs are currently

organized. In this regard, the Exemptive Order generally provided non-

U.S. SDs and MSPs in the six jurisdictions with conditional relief from

certain requirements of Commission regulations (those referred to as

``Entity-Level Requirements'' in the Guidance) until the earlier of

December 21, 2013, or 30 days following the issuance of a substituted

compliance determination.\3\

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\2\ 78 FR 43785 (July 22, 2013).

\3\ The Entity-Level Requirements under the Exemptive Order

consist of 17 CFR 1.31, 3.3, 23.201, 23.203, 23.600, 23.601, 23.602,

23.603, 23.605, 23.606, 23.608, 23.609, and parts 45 and 46 of the

Commission's regulations.

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On April 22, 2013, the ABA (the ``applicant'') submitted a request

that the Commission determine that laws and regulations applicable in

Australia provide a sufficient basis for an affirmative finding of

comparability with respect to certain Entity-Level Requirements,

including the Internal Business Conduct Requirements.\4\ The applicant

provided Commission staff with an updated submission on June 7, 2013.

On November 8, 2013, the application was further supplemented with

corrections and additional materials. The following is the Commission's

analysis and determination regarding the Internal Business Conduct

Requirements, as detailed below.\5\

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\4\ For purposes of this notice, the Internal Business Conduct

Requirements consist of 17 CFR 3.3, 23.201, 23.203, 23.600, 23.601,

23.602, 23.603, 23.605, and 23.606.

\5\ This notice does not address swap data repository reporting

(``SDR Reporting''). The Commission may provide a comparability

determination with respect to the SDR Reporting requirement in a

separate notice.

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II. Background

On July 21, 2010, President Obama signed the Dodd-Frank Wall Street

Reform and Consumer Protection Act \6\ (``Dodd-Frank Act'' or ``Dodd-

Frank''), which, in Title VII, established a new regulatory framework

for swaps.

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\6\ Public Law 111-203, 124 Stat. 1376 (2010).

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Section 722(d) of the Dodd-Frank Act amended the CEA by adding

section 2(i), which provides that the swap provisions of the CEA

(including any CEA rules or regulations) apply to cross-border

activities when certain conditions are met, namely, when such

activities have a ``direct and significant connection with activities

in, or effect on, commerce of the United States'' or when they

contravene Commission rules or regulations as are necessary or

appropriate to prevent evasion of the swap provisions of the CEA

enacted under Title VII of the Dodd-Frank Act.\7\

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\7\ 7 U.S.C. 2(i).

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In the three years since its enactment, the Commission has

finalized 68 rules and orders to implement Title VII of the Dodd-Frank

Act. The finalized rules include those promulgated under section 4s of

the CEA, which address registration of SDs and MSPs and other

substantive requirements applicable to SDs and MSPs. With few

exceptions, the delayed compliance dates for the Commission's

regulations implementing such section 4s requirements applicable to SDs

and MSPs have passed and new SDs and MSPs are now required to be in

full compliance with such regulations upon registration with the

Commission.\8\ Notably, the requirements under Title VII of the Dodd-

Frank Act related to SDs and MSPs by their terms apply to all

registered SDs and MSPs, irrespective of where they are located, albeit

subject to the limitations of CEA section 2(i).

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\8\ The compliance dates are summarized on the Compliance Dates

page of the Commission's Web site. (http://www.cftc.gov/LawRegulation/DoddFrankAct/ComplianceDates/index.htm.)

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To provide guidance as to the Commission's views regarding the

scope of the cross-border application of Title VII of the Dodd-Frank

Act, the Commission set forth in the Guidance its interpretation of the

manner in which it believes that Title VII's swap provisions apply to

activities outside the U.S. pursuant to section 2(i) of the CEA. Among

other matters, the Guidance generally described the policy and

procedural framework under which the Commission would consider a

substituted compliance program with respect to Commission regulations

applicable to entities located outside the U.S. Specifically, the

Commission addressed a recognition program where compliance with a

comparable regulatory requirement of a foreign jurisdiction would serve

as a reasonable substitute for compliance with the attendant

requirements of the CEA and the Commission's regulations. With respect

to the standards forming the basis for any determination of

comparability (``comparability determination'' or ``comparability

finding''), the Commission stated:

In evaluating whether a particular category of foreign

regulatory requirement(s) is comparable and comprehensive to the

applicable requirement(s) under the CEA and Commission regulations,

the Commission will take into consideration all relevant factors,

including but not limited to, the comprehensiveness of those

requirement(s), the scope and objectives of the relevant regulatory

requirement(s), the comprehensiveness of the foreign regulator's

supervisory compliance program, as well as the home jurisdiction's

authority to support and enforce its oversight of the registrant. In

this context, comparable does not necessarily mean identical.

Rather, the Commission would evaluate whether the home

jurisdiction's regulatory requirement is comparable to and as

comprehensive as the corresponding U.S. regulatory

requirement(s).\9\

\9\ 78 FR 45342-45.

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Upon a comparability finding, consistent with CEA section 2(i) and

comity principles, the Commission's policy generally is that eligible

entities may comply with a substituted compliance regime, subject to

any conditions the Commission places on its finding, and subject to the

Commission's retention of its examination authority and its enforcement

authority.\10\

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\10\ See the Guidance, 78 FR 45342-44.

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In this regard, the Commission notes that a comparability

determination cannot be premised on whether an SD or MSP must disclose

comprehensive information to its regulator in its home jurisdiction,

but rather on whether information relevant to the Commission's

oversight of an SD or MSP would be directly available to the Commission

and any U.S. prudential regulator of the SD or MSP.\11\ The

Commission's direct access to the books and records required to be

maintained

[[Page 78866]]

by an SD or MSP registered with the Commission is a core requirement of

the CEA \12\ and the Commission's regulations,\13\ and is a condition

to registration.\14\

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\11\ Under Sec. Sec. 23.203 and 23.606, all records required by

the CEA and the Commission's regulations to be maintained by a

registered SD or MSP shall be maintained in accordance with

Commission regulation 1.31 and shall be open for inspection by

representatives of the Commission, the United States Department of

Justice, or any applicable U.S. prudential regulator.

In its Final Exemptive Order Regarding Compliance with Certain

Swap Regulations, 78 FR 858 (Jan. 7, 2013), the Commission noted

that an applicant for registration as an SD or MSP must file a Form

7-R with the National Futures Association and that Form 7-R was

being modified at that time to address existing blocking, privacy,

or secrecy laws of foreign jurisdictions that applied to the books

and records of SDs and MSPs acting in those jurisdictions. See id.

at 871-72 n. 107. The modifications to Form 7-R were a temporary

measure intended to allow SDs and MSPs to apply for registration in

a timely manner in recognition of the existence of the blocking,

privacy, and secrecy laws. In the Guidance, the Commission clarified

that the change to Form 7-R impacts the registration application

only and does not modify the Commission's authority under the CEA

and its regulations to access records held by registered SDs and

MSPs. Commission access to a registrant's books and records is a

fundamental regulatory tool necessary to properly monitor and

examine each registrant's compliance with the CEA and the

regulations adopted pursuant thereto. The Commission has maintained

an ongoing dialogue on a bilateral and multilateral basis with

foreign regulators and with registrants to address books and records

access issues and may consider appropriate measures where requested

to do so.

\12\ See e.g., sections 4s(f)(1)(C), 4s(j)(3) and (4) of the

CEA.

\13\ See e.g., Sec. Sec. 23.203(b) and 23.606.

\14\ See supra note 10.

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III. Regulation of SDs and MSPs in Australia

On April 22, 2013, the applicant submitted a request that the

Commission assess the comparability of laws and regulations applicable

in Australia with the CEA and the Commission's regulations promulgated

thereunder. The applicant provided Commission staff with an updated

submission on June 7, 2013. On November 8, 2013, the application was

further supplemented with corrections and additional materials.

As represented to the Commission by the applicant, currently all

five Australian registered SDs are Australian authorized deposit-taking

institutions (``ADIs'') and holders of an Australian financial services

license (``AFSL''). Thus, for the purposes of the Commission's

comparability determination, the Commission will consider the laws and

regulations applicable to the five SD ADIs with respect to their swap

activities. The relevant laws and regulations are administered by two

agencies; the Australian Prudential Regulatory Authority (``APRA'') and

the Australian Securities and Investments Commission (``ASIC'').\15\

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\15\ Because the applicant's request and the Commissions

determinations herein are based on the comparability of Australian

requirements applicable to ADIs and AFSL holders, an SD or MSP that

is not an ADI or AFSL holder, or is otherwise not subject to the

requirements applicable to ADIs and AFSL holders upon which the

Commission bases its determinations, may not be able to rely on the

Commission's comparability determinations herein.

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APRA is the prudential regulator of the Australian financial

services industry and oversees the banking industry. It has developed a

regulatory framework for Australian ADIs under the Banking Act 1959

(the ``Banking Act'') that is based on the banking supervision

principles published by the Basel Committee on Banking Supervision.

This regulatory framework is set out in a number of different

prudential standards that govern the activities of ADIs.

ASIC is Australia's corporate, markets, and financial services

regulator. ASIC licenses and monitors financial services businesses to

ensure they operate efficiently, honestly, and fairly. ASIC

administers, among other things, the following legislation and

regulations: the Corporations Act 2001 (the ``Corporations Act''), the

Corporations Regulations 2001, and the Australian Securities and

Investments Commission Act 2001 (the ``ASIC Act''). Under the

Corporations Act, an Australian entity that undertakes specified

activities, including dealing or market making in derivatives

(including swaps) is required to hold an AFSL. The AFSL regime

establishes a number of general licensing obligations that all

licensees must comply with. ASIC has also issued regulatory guidance

which sets out its expectations of how licensees may comply with their

licensing obligations in a range of situations and taking into account

the nature, size, and complexity of their financial services business.

IV. Comparable and Comprehensiveness Standard

The Commission's comparability analysis will be based on a

comparison of specific foreign requirements against the specific

related CEA provisions and Commission regulations as categorized and

described in the Guidance. As explained in the Guidance, within the

framework of CEA section 2(i) and principles of international comity,

the Commission may make a comparability determination on a requirement-

by-requirement basis, rather than on the basis of the foreign regime as

a whole.\16\ In making its comparability determinations, the Commission

may include conditions that take into account timing and other issues

related to coordinating the implementation of reform efforts across

jurisdictions.\17\

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\16\ 78 FR 45343.

\17\ 78 FR 45343.

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In evaluating whether a particular category of foreign regulatory

requirement(s) is comparable and comprehensive to the corollary

requirement(s) under the CEA and Commission regulations, the Commission

will take into consideration all relevant factors, including, but not

limited to:

The comprehensiveness of those requirement(s),

The scope and objectives of the relevant regulatory

requirement(s),

The comprehensiveness of the foreign regulator's

supervisory compliance program, and

The home jurisdiction's authority to support and enforce

its oversight of the registrant.\18\

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\18\ 78 FR 45343.

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In making a comparability determination, the Commission takes an

``outcome-based'' approach. An ``outcome-based'' approach means that

when evaluating whether a foreign jurisdiction's regulatory

requirements are comparable to, and as comprehensive as, the corollary

areas of the CEA and Commission regulations, the Commission ultimately

focuses on regulatory outcomes (i.e., the home jurisdiction's

requirements do not have to be identical).\19\ This approach recognizes

that foreign regulatory systems differ and their approaches vary and

may differ from how the Commission chose to address an issue, but that

the foreign jurisdiction's regulatory requirements nonetheless achieve

the regulatory outcome sought to be achieved by a certain provision of

the CEA or Commission regulation.

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\19\ 78 FR 45343. The Commission's substituted compliance

program would generally be available for SDR Reporting, as outlined

in the Guidance, only if the Commission has direct access to all of

the data elements that are reported to a foreign trade repository

pursuant to the substituted compliance program. Thus, direct access

to swap data is a threshold matter to be addressed in a

comparability evaluation for SDR Reporting. Moreover, the Commission

explains in the Guidance that, due to its technical nature, a

comparability evaluation for SDR Reporting ``will generally entail a

detailed comparison and technical analysis.'' A more particularized

analysis will generally be necessary to determine whether data

stored in a foreign trade repository provides for effective

Commission use, in furtherance of the regulatory purposes of the

Dodd-Frank Act. See 78 FR 45345.

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In doing its comparability analysis the Commission may determine

that no comparability determination can be made \20\ and that the non-

U.S. SD or non-U.S. MSP, U.S. bank that is an SD or MSP with respect to

its foreign branches, or non-registrant, to the extent applicable under

the Guidance, may be required to comply with the CEA and Commission

regulations.

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\20\ A finding of comparability may not be possible for a number

of reasons, including the fact that the foreign jurisdiction has not

yet implemented or finalized particular requirements.

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The starting point in the Commission's analysis is a consideration

of the regulatory objectives of the foreign jurisdiction's regulation

of swaps and swap market participants. As stated in the Guidance,

jurisdictions may not have swap specific regulations in some areas, and

instead have regulatory or supervisory regimes that achieve comparable

and comprehensive regulation to the Dodd-Frank Act requirements, but on

a more general, entity-wide, or prudential, basis.\21\ In addition,

portions of a foreign regulatory regime may have similar regulatory

objectives, but the means by which these objectives are achieved with

respect to swaps market activities may not be clearly defined, or may

not

[[Page 78867]]

expressly include specific regulatory elements that the Commission

concludes are critical to achieving the regulatory objectives or

outcomes required under the CEA and the Commission's regulations. In

these circumstances, the Commission will work with the regulators and

registrants in these jurisdictions to consider alternative approaches

that may result in a determination that substituted compliance

applies.\22\

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\21\ 78 FR 45343.

\22\ As explained in the Guidance, such ``approaches used will

vary depending on the circumstances relevant to each jurisdiction.

One example would include coordinating with the foreign regulators

in developing appropriate regulatory changes or new regulations,

particularly where changes or new regulations already are being

considered or proposed by the foreign regulators or legislative

bodies. As another example, the Commission may, after consultation

with the appropriate regulators and market participants, include in

its substituted compliance determination a description of the means

by which certain swaps market participants can achieve substituted

compliance within the construct of the foreign regulatory regime.

The identification of the means by which substituted compliance is

achieved would be designed to address the regulatory objectives and

outcomes of the relevant Dodd-Frank Act requirements in a manner

that does not conflict with a foreign regulatory regime and reduces

the likelihood of inconsistent regulatory obligations. For example,

the Commission may specify that [SDs] and MSPs in the jurisdiction

undertake certain recordkeeping and documentation for swap

activities that otherwise is only addressed by the foreign

regulatory regime with respect to financial activities generally. In

addition, the substituted compliance determination may include

provisions for summary compliance and risk reporting to the

Commission to allow the Commission to monitor whether the regulatory

outcomes are being achieved. By using these approaches, in the

interest of comity, the Commission would seek to achieve its

regulatory objectives with respect to the Commission's registrants

that are operating in foreign jurisdictions in a manner that works

in harmony with the regulatory interests of those jurisdictions.''

78 FR 45343-44.

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Finally, the Commission will generally rely on an applicant's

description of the laws and regulations of the foreign jurisdiction in

making its comparability determination. The Commission considers an

application to be a representation by the applicant that the laws and

regulations submitted are in full force and effect, that the

description of such laws and regulations is accurate and complete, and

that, unless otherwise noted, the scope of such laws and regulations

encompasses the swaps activities\23 \ of SDs and MSPs \24\ in the

relevant jurisdictions.\25\ Further, as stated in the Guidance, the

Commission expects that an applicant would notify the Commission of any

material changes to information submitted in support of a comparability

determination (including, but not limited to, changes in the relevant

supervisory or regulatory regime) as, depending on the nature of the

change, the Commission's comparability determination may no longer be

valid.\26\

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\23\ ``Swaps activities'' is defined in Commission regulation

23.600(a)(7) to mean, ``with respect to a registrant, such

registrant's activities related to swaps and any product used to

hedge such swaps, including, but not limited to, futures, options,

other swaps or security-based swaps, debt or equity securities,

foreign currency, physical commodities, and other derivatives.'' The

Commission's regulations under 17 CFR Part 23 are limited in scope

to the swaps activities of SDs and MSPs.

\24\ No SD or MSP that is not legally required to comply with a

law or regulation determined to be comparable may voluntarily comply

with such law or regulation in lieu of compliance with the CEA and

the relevant Commission regulation. Each SD or MSP that seeks to

rely on a comparability determination is responsible for determining

whether it is subject to the laws and regulations found comparable.

Currently, there are no MSPs organized outside the U.S. and the

Commission therefore cautions any non-financial entity organized

outside the U.S. and applying for registration as an MSP to

carefully consider whether the laws and regulations determined to be

comparable herein are applicable to such entity.

\25\ The Commission has provided the relevant foreign

regulator(s) with opportunities to review and correct the

applicant's description of such laws and regulations on which the

Commission will base its comparability determination. The Commission

relies on the accuracy and completeness of such review and any

corrections received in making its comparability determinations. A

comparability determination based on an inaccurate description of

foreign laws and regulations may not be valid.

\26\ 78 FR 45345.

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The Guidance provided a detailed discussion of the Commission's

policy regarding the availability of substituted compliance \27\ for

the Internal Business Conduct Requirements.\28\

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\27\ See 78 FR 45348-50. The Commission notes that registrants

and other market participants are responsible for determining

whether substituted compliance is available pursuant to the Guidance

based on the comparability determination contained herein (including

any conditions or exceptions), and its particular status and

circumstances.

\28\ This notice does not address Sec. 23.608 (Restrictions on

counterparty clearing relationships). The Commission declines to

take up the request for a comparability determination with respect

to this regulation due to the Commission's view that there are not

laws or regulations applicable in Australia to compare with the

prohibitions and requirements of Sec. 23.608. The Commission may

provide a comparability determination with respect to this

regulation at a later date in consequence of further developments in

the law and regulations applicable in Australia.

This notice also does not address capital adequacy because the

Commission has not yet finalized rules for SDs and MSPs in this

area, nor SDR Reporting. The Commission may provide a comparability

determination with respect to these requirements at a later date or

in a separate notice.

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V. Supervisory Arrangement

In the Guidance, the Commission stated that, in connection with a

determination that substituted compliance is appropriate, it would

expect to enter into an appropriate memorandum of understanding

(``MOU'') or similar arrangement \29\ with the relevant foreign

regulator(s). Although existing arrangements would indicate a foreign

regulator's ability to cooperate and share information, ``going

forward, the Commission and relevant foreign supervisor(s) would need

to establish supervisory MOUs or other arrangements that provide for

information sharing and cooperation in the context of supervising [SDs]

and MSPs.'' \30\

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\29\ An MOU is one type of arrangement between or among

regulators. Supervisory arrangements could include, as appropriate,

cooperative arrangements that are memorialized and executed as

addenda to existing MOUs or, for example, as independent bilateral

arrangements, statements of intent, declarations, or letters.

\30\ 78 FR 45344.

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The Commission is in the process of developing its registration and

supervision regime for provisionally-registered SDs and MSPs. This new

initiative includes setting forth supervisory arrangements with

authorities that have joint jurisdiction over SDs and MSPs that are

registered with the Commission and subject to U.S. law. Given the

developing nature of the Commission's regime and the fact that the

Commission has not negotiated prior supervisory arrangements with

certain authorities, the negotiation of supervisory arrangements

presents a unique opportunity to develop close working relationships

between and among authorities, as well as highlight any potential

issues related to cooperation and information sharing.

Accordingly, the Commission is negotiating such a supervisory

arrangement with each applicable foreign regulator of an SD or MSP. The

Commission expects that the arrangement will establish expectations for

ongoing cooperation, address direct access to information,\31\ provide

for notification upon the occurrence of specified events, memorialize

understandings related to on-site visits,\32\ and include protections

related

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to the use and confidentiality of non-public information shared

pursuant to the arrangement.

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\31\ Section 4s(j)(3) and (4) of the CEA and Commission

regulation 23.606 require a registered SD or MSP to make all records

required to be maintained in accordance with Commission regulation

1.31 available promptly upon request to, among others,

representatives of the Commission. See also 7 U.S.C. 6s(f); 17 CFR

23.203. In the Guidance, the Commission states that it ``reserves

this right to access records held by registered [SDs] and MSPs,

including those that are non-U.S. persons who may comply with the

Dodd-Frank recordkeeping requirement through substituted

compliance.'' 78 FR 45345 n. 472; see also id. at 45342 n. 461

(affirming the Commission's authority under the CEA and its

regulations to access books and records held by registered SDs and

MSPs as ``a fundamental regulatory tool necessary to properly

monitor and examine each registrant's compliance with the CEA and

the regulations adopted pursuant thereto'').

\32\ The Commission retains its examination authority, both

during the application process as well as upon and after

registration of an SD or MSP. See 78 FR 45342 (stating Commission

policy that ``eligible entities may comply with a substituted

compliance regime under certain circumstances, subject, however, to

the Commission's retention of its examination authority'') and 45344

n. 471 (stating that the ``Commission may, as it deems appropriate

and necessary, conduct an on-site examination of the applicant'').

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These arrangements will establish a roadmap for how authorities

will consult, cooperate, and share information. As with any such

arrangement, however, nothing in these arrangements will supersede

domestic laws or resolve potential conflicts of law, such as the

application of domestic secrecy or blocking laws to regulated entities.

VI. Comparability Determination and Analysis

The following section describes the requirements imposed by

specific sections of the CEA and the Commission's regulations for the

Internal Business Conduct Requirements that are the subject of this

comparability determination, and the Commission's regulatory objectives

with respect to such requirements. Immediately following a description

of the requirement(s) and regulatory objective(s) of the specific

Internal Business Conduct Requirements that the requestor submitted for

a comparability determination, the Commission provides a description of

the foreign jurisdiction's comparable laws, regulations, or rules and

whether such laws, regulations, or rules meet the applicable regulatory

objective.

The Commission's determinations in this regard and the discussion

in this section are intended to inform the public of the Commission's

views regarding whether the foreign jurisdiction's laws, regulations,

or rules may be comparable and comprehensive as those requirements in

the Dodd-Frank Act (and Commission regulations promulgated thereunder)

and therefore, may form the basis of substituted compliance. In turn,

the public (in the foreign jurisdiction, in the United States, and

elsewhere) retains its ability to present facts and circumstances that

would inform the determinations set forth in this notice.

As was stated in the Guidance, the Commission recognizes the

complex and dynamic nature of the global swap market and the need to

take an adaptable approach to cross-border issues, particularly as it

continues to work closely with foreign regulators to address potential

conflicts with respect to each country's respective regulatory regime.

In this regard, the Commission may review, modify, or expand the

determinations herein in light of comments received and future

developments.

A. Chief Compliance Officer (Sec. 3.3)

Commission Requirement: Implementing section 4s(k) of the CEA,

Commission regulation 3.3 generally sets forth the following

requirements for SDs and MSPs:

An SD or MSP must designate an individual as Chief

Compliance Officer (``CCO'');

The CCO must have the responsibility and authority to

develop the regulatory compliance policies and procedures of the SD or

MSP;

The CCO must report to the board of directors or the

senior officer of the SD or MSP;

Only the board of directors or a senior officer may remove

the CCO;

The CCO and the board of directors must meet at least once

per year;

The CCO must have the background and skills appropriate

for the responsibilities of the position;

The CCO must not be subject to disqualification from

registration under sections 8a(2) or (3) of the CEA;

Each SD and MSP must include a designation of a CCO in its

registration application;

The CCO must administer the regulatory compliance policies

of the SD or MSP;

The CCO must take reasonable steps to ensure compliance

with the CEA and Commission regulations, and resolve conflicts of

interest;

The CCO must establish procedures for detecting and

remediating non-compliance issues;

The CCO must annually prepare and sign an ``annual

compliance report'' containing: (i) A description of policies and

procedures reasonably designed to ensure compliance; (ii) an assessment

of the effectiveness of such policies and procedures; (iii) a

description of material non-compliance issues and the action taken;

(iv) recommendations of improvements in compliance policies; and (v) a

certification by the CCO or CEO that, to the best of such officer's

knowledge and belief, the annual report is accurate and complete under

penalty of law; and

The annual compliance report must be furnished to the CFTC

within 90 days after the end of the fiscal year of the SD or MSP,

simultaneously with its annual financial condition report.

Regulatory Objective: The Commission believes that compliance by

SDs and MSPs with the CEA and the Commission's rules greatly

contributes to the protection of customers, orderly and fair markets,

and the stability and integrity of the market intermediaries registered

with the Commission. The Commission expects SDs and MSPs to strictly

comply with the CEA and the Commission's rules and to devote sufficient

resources to ensuring such compliance. Thus, through its CCO rule, the

Commission seeks to ensure firms have designated a qualified individual

as CCO that reports directly to the board of directors or the senior

officer of the firm and that has the independence, responsibility, and

authority to develop and administer compliance policies and procedures

reasonably designed to ensure compliance with the CEA and Commission

regulations, resolve conflicts of interest, remediate noncompliance

issues, and report annually to the Commission and the board or senior

officer on compliance of the firm.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as section 4s(k) of

the CEA and Commission regulation 3.3.

APRA prudential standard CPS 520--Fit and Proper (``CPS

520'') requires the appointment of ``responsible persons.'' CPS 520

states that responsible persons must be fit and proper, and that the

ultimate responsibility for ensuring that an institution's responsible

persons are fit and proper remains with the board of directors.

ASIC Regulatory Guide 105 Licensing: Organisational

competence requires AFSL licensees to appoint ``responsible managers''

who have direct responsibility for significant day-to-day decisions

about the financial services provided, and for maintaining

organizational competence of the entity. Such responsible managers must

have the relevant skill and experience and be of good fame and

character.

ASIC Regulatory Guide 104 Licensing: Meeting the general

obligations (``RG 104'') also requires AFSL holders to allocate to a

director or senior manager responsibility for overseeing the AFSL

holder's compliance measures, and reporting to the governing body

(including having ready access to the governing body).

When ASIC assesses an application for an AFSL, ASIC

requires applicants to describe whether their compliance arrangements

are generally consistent with ``Australian Standard 3806'' (``AS

[[Page 78869]]

3806'').\33\ AS 3806 provides principles and guidance for designing,

developing, implementing, maintaining and improving a flexible,

responsive effective and measurable compliance program within an

organization. Although this is a non-governmental standard, ASIC refers

to AS 3806 in its regulatory guidance for AFSL licensees and asks AFSL

holders to refer to the standards when complying with their regulatory

obligations.

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\33\ AS 3806 is a standard published by ``Standards Australia,''

a non-government standards organization. Australian Standards are

not legal documents, but can be referenced in Australian legislation

and become mandatory.

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AFSL licensees must comply with section 912A of the

Corporations Act, which, among other obligations, requires that such

entities: Do all things necessary to ensure that the financial services

covered by the license are provided efficiently, honestly and fairly;

have adequate arrangements in place for managing conflicts of interest

that may arise wholly, or partially, in relation to activities

undertaken by the licensee or a representative of the licensee in the

provision of financial services as part of the financial services

business of the licensee or the representative; comply with any

conditions on the license; comply with the financial services laws;

take reasonable steps to ensure that representatives comply with the

financial services laws; maintain the competence to provide the

financial services covered by the license; ensure that representatives

are adequately trained and competent to provide those financial

services; and if those financial services are provided to retail

clients, have a dispute resolution system.

AFSL licensees are also required under section 912D of the

Corporations Act to report to ASIC any significant breach (or likely

breach) of its regulatory obligations. ASIC Regulatory Guide 78 Breach

reporting by AFS licensees expands on this obligation and requires AFSL

holders to have a documented process for, amongst other things,

rectifying breaches and ensuring that arrangements are in place to

prevent the recurrence of the breach.

ADIs are also required under APRA prudential standard APS

310 Audit and Related Matters (``APS 310'') to provide APRA a high-

level description of its risk management systems covering all major

areas of risk and annually, within three months of its annual balance

date, provide APRA with a declaration from its CEO endorsed by the

board that attests that: they have established systems to monitor and

manage those risk including, where appropriate, by setting and

requiring adherence to a series of prudent limits, and by adequate and

timely reporting processes; the risk management systems are operating

effectively and are adequate with regard to the risks they are designed

to control; and the descriptions of risk management systems provided to

APRA are accurate and current.\34\

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\34\ Not relevant for the Commission's comparability

determination herein, the applicant also referenced APRA draft

prudential standard CPS 220 Risk Management (``Draft CPS 220''),

which was released by APRA on May 9, 2013. This draft prudential

standard, if finalized in a form similar to its draft form, will

require each ADI (including SD ADIs) to have a designated compliance

function that assists senior management in effectively managing

compliance risks. It will also require that the compliance function

be adequately staffed by appropriately trained and competent persons

who have sufficient authority to perform their role effectively, and

have a reporting line independent from business lines. APRA expects

to finalize Draft CPS 220 prior to its implementation date of

January 1, 2015.

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Commission Determination: The Commission finds that the provisions

and requirements under the Australian regimes specified above are

generally identical in intent to Sec. 3.3 by seeking to ensure firms

have designated a qualified individual as the compliance officer that

reports directly to a sufficiently senior function of the firm and that

has the independence, responsibility, and authority to develop and

administer compliance policies and procedures reasonably designed to

ensure compliance with the CEA and Commission regulations, resolve

conflicts of interest, remediate noncompliance issues, and report

annually on compliance of the firm.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the CCO requirements of the

provisions of Australian law and regulations specified above are

comparable to and as comprehensive as Sec. 3.3, with the exception of

Sec. 3.3(e) concerning preparing and signing an annual compliance

report and Sec. 3.3(f) concerning certifying and furnishing an annual

compliance report to the Commission.

Notwithstanding that the Commission has not determined that the

requirements of Australian law and regulations are comparable to and as

comprehensive as Sec. Sec. 3.3(e) and 3.3(f), any SD or MSP to which

both Sec. 3.3 and the Australian law and regulations specified above

are applicable would generally be deemed to be in compliance with

Sec. Sec. 3.3(e) and (f) if that SD or MSP complies with the

Australian law and regulations specified above, subject to preparing

and signing an annual compliance report in accordance with Sec. 3.3(e)

and certifying and furnishing the Commission with an annual compliance

report in accordance with Sec. 3.3(f). The Commission notes that it

generally expects registrants to submit required reports to the

Commission in the English language.

B. Risk Management Duties (Sec. Sec. 23.600--23.609)

Section 4s(j) of the CEA requires each SD and MSP to establish

internal policies and procedures designed to, among other things,

address risk management, monitor compliance with position limits,

prevent conflicts of interest, and promote diligent supervision, as

well as maintain business continuity and disaster recovery

programs.\35\ The Commission adopted regulations 23.600, 23.601,

23.602, 23.603, 23.605, and 23.606 to implement the statute.\36\ The

Commission also adopted regulation 23.609, which requires certain risk

management procedures for SDs or MSPs that are clearing members of a

derivatives clearing organization (``DCO'').\37\ Collectively, these

requirements help to establish a robust and comprehensive internal risk

management program for SDs and MSPs with respect to their swaps

activities,\38\ which is critical to effective systemic risk management

for the overall swaps market. In making its comparability determination

with regard to these risk management duties, the Commission will

consider each regulation individually.\39\

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\35\ 7 U.S.C. 6s(j).

\36\ See Final Swap Dealer and MSP Recordkeeping Rule, 77 FR

20128 (April 3, 2012) (relating to risk management program,

monitoring of position limits, business continuity and disaster

recovery, conflicts of interest policies and procedures, and general

information availability, respectively).

\37\ See Customer Documentation Rule, 77 FR 21278. Also, SDs

must comply with Commission regulation 23.608, which prohibits SDs

providing clearing services to customers from entering into

agreements that would: (i) Disclose the identity of a customer's

original executing counterparty; (ii) limit the number of

counterparties a customer may trade with; (iii) impose counterparty-

based position limits; (iv) impair a customer's access to execution

of a trade on terms that have a reasonable relationship to the best

terms available; or (v) prevent compliance with specified time

frames for acceptance of trades into clearing.

\38\ ``Swaps activities'' is defined in Commission regulation

23.600(a)(7) to mean, ``with respect to a registrant, such

registrant's activities related to swaps and any product used to

hedge such swaps, including, but not limited to, futures, options,

other swaps or security-based swaps, debt or equity securities,

foreign currency, physical commodities, and other derivatives.'' The

Commission's regulations under 17 CFR Part 23 are limited in scope

to the swaps activities of SDs and MSPs.

\39\ As stated above, this notice does not address Sec. 23.608

(Restrictions on counterparty clearing relationships). The

Commission declines to take up the request for a comparability

determination with respect to this regulation due to the

Commission's view that there are not laws or regulations applicable

in Australia to compare with the prohibitions and requirements of

Sec. 23.608. The Commission may provide a comparability

determination with respect to this regulation at a later date in

consequence of further developments in the law and regulations

applicable in Australia.

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[[Page 78870]]

1. Risk Management Program for SDs and MSPs (Sec. 23.600)

Commission Requirement: Implementing section 4s(j)(2) of the CEA,

Commission regulation 23.600 generally requires that:

Each SD or MSP must establish and enforce a risk

management program consisting of a system of written risk management

policies and procedures designed to monitor and manage the risks

associated with the swap activities of the firm, including without

limitation, market, credit, liquidity, foreign currency, legal,

operational, and settlement risks, and furnish a copy of such policies

and procedures to the CFTC upon application for registration and upon

request;

The SD or MSP must establish a risk management unit

independent from the business trading unit;

The risk management policies and procedures of the SD or

MSP must be approved by the firm's governing body;

Risk tolerance limits and exceptions therefrom must be

reviewed and approved quarterly by senior management and annually by

the governing body;

The risk management program must have a system for

detecting breaches of risk tolerance limits and alerting supervisors

and senior management, as appropriate;

The risk management program must account for risks posed

by affiliates and be integrated at the consolidated entity level;

The risk management unit must provide senior management

and the governing body with quarterly risk exposure reports and upon

detection of any material change in the risk exposure of the SD or MSP;

Risk exposure reports must be furnished to the CFTC within

five business days following provision to senior management;

The risk management program must have a new product policy

for assessing the risks of new products prior to engaging in such

transactions;

The risk management program must have policies and

procedures providing for trading limits, monitoring of trading,

processing of trades, and separation of personnel in the trading unit

from personnel in the risk management unit; and

The risk management program must be reviewed and tested at

least annually and upon any material change in the business of the SD

or MSP.

Regulatory Objective: Through the required system of risk

management, the Commission seeks to ensure that firms are adequately

managing the risks of their swaps activities to prevent failure of the

SD or MSP, which could result in losses to counterparties doing

business with the SD or MSP, and systemic risk more generally. To this

end, the Commission believes the risk management program of an SD or

MSP must contain at least the following critical elements:

Identification of risk categories;

Establishment of risk tolerance limits for each category

of risk and approval of such limits by senior management and the

governing body;

An independent risk management unit to administer a risk

management program; and

Periodic oversight of risk exposures by senior management

and the governing body.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as section 4s(j)(2)

of the CEA and Commission regulation 23.600.\40\

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\40\ Not relevant for the Commission's comparability

determination herein, the applicant also referenced Draft CPS 220.

Draft CPS 220 seeks to introduce additional requirements in respect

of the risk management framework for ADIs. APRA expects to finalize

CPS 220 prior to its implementation date of January 1, 2015. Under

Draft CPS 220, an APRA-regulated institution must have policies and

procedures that provide the board with a comprehensive institution-

wide view of its material risks. Draft CPS 220 also requires the

risk management function of an ADI be ``operationally independent''

and must be headed by a designated Chief Risk Officer (``CRO''). The

CRO must be involved in, and have the authority to provide effective

challenge to, activities and decisions that may materially affect

the institution's risk profile.

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The regulatory framework for ADIs under the Banking Act is

based on the banking supervision principles published by the Basel

Committee on Banking Supervision.\41\ This prudential framework

includes requirements (largely set out in detailed and separate

prudential standards) regarding capital adequacy, credit risk, market

risk, liquidity, credit quality, large exposures, associations with

related entities, outsourcing, business continuity management, audit

and related arrangements for prudential reporting, governance, and fit

and proper management.

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\41\ The Corporations Act requires AFSL holders to comply with

risk management requirements, however, this requirement does not

apply where an entity is regulated by APRA. See section 912A(1)(h).

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In particular, APS 310 (discussed above) requires an ADI's

board and management to ensure that the ADI meets prudential and

statutory requirements and has management practices to limit risks to

prudent levels. APS 310 mandates that the ADI's risk management

practices must be detailed in descriptions of risk management systems

that must be regularly reviewed and updated, at least annually, to take

account of changing circumstances.

APRA Prudential standard APS 116 Capital Adequacy: Market

Risk (``APS 116'') states that the board, or a board committee, of an

ADI must ensure that the ADI has in place adequate systems to identify,

measure and manage market risk, including identifying responsibilities,

providing adequate separation of duties and avoiding conflicts of

interest.

For certain trading positions, APS 116 states that an ADI

must have ``clearly defined policies and procedures for the active

management of positions such that: positions are managed on a trading

desk; position limits are set and monitored for appropriateness;

positions are marked-to-market daily and when marking-to-model the

parameters are assessed on a daily basis; and positions are reported to

senior management as an integral part of the institution's risk

management process.

If an ADI has received approval to apply an ``internal

model'' for market risk, as opposed to the ``standard method'' of

calculating capital requirements, APS 116 requires the ADI to have an

independent risk control unit that is responsible for the design and

implementation of the ADI's market risk management system. The risk

control unit must produce and analyze daily reports on the output of

the ADI's risk measurement model, including an evaluation of limit

utilization. This risk control unit must be independent from business

trading and other risk taking units and must report directly to senior

management of the ADI.

If an ADI has received approval to apply an ``internal

model'' for market risk, APS 116 states that the board or a board

committee and senior management of an ADI must be actively involved in

the risk control process. Daily reports must be prepared by the

independent risk control unit and must be reviewed by a level of

management with sufficient seniority and authority to enforce

reductions of positions.

APS 116 states that an ADI must ensure that an independent

review of the risk measurement system and

[[Page 78871]]

overall risk management process is carried out initially (i.e., at the

time when model approval is sought) and then regularly as part of the

ADI's internal audit process.

Commission Determination: The Commission finds that the provisions

of Australian law and regulations specified above are generally

identical in intent to Sec. 23.600 by requiring a system of risk

management that seeks to ensure that firms are adequately managing the

risks of their swaps activities to prevent failure of the SD or MSP,

which could result in losses to counterparties doing business with the

SD or MSP, and systemic risk more generally. Specifically, the

Commission finds that the Australian provisions specified above

comprehensively require SDs and MSPs to establish risk management

programs containing the following critical elements:

Identification of risk categories;

Establishment of risk tolerance limits for each category

of risk and approval of such limits by senior management and the

governing body;

An independent risk management unit to administer a risk

management program; and

Periodic oversight of risk exposures by senior management

and the governing body.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the risk management program

requirements of the provisions of Australian law and regulations

specified above, are comparable to and as comprehensive as Sec.

23.600, with the exception of Sec. 23.600(c)(2) concerning the

requirement that each SD and MSP produce a quarterly risk exposure

report and provide such report to its senior management, governing

body, and the Commission.

Notwithstanding that the Commission has not determined that the

requirements of Australian law and regulations are comparable to and as

comprehensive as Sec. 23.600(c)(2), any SD or MSP to which both Sec.

23.600 and the Australian law and regulations specified above are

applicable would generally be deemed to be in compliance with Sec.

23.600(c)(2) if that SD or MSP complies with the Australian law and

regulations specified above, subject to compliance with the requirement

that it produce quarterly risk exposure reports and provide such

reports to its senior management, governing body, and the Commission in

accordance with Sec. 23.600(c)(2). The Commission notes that it

generally expects reports furnished to the Commission by registrants to

be in the English language.

2. Monitoring of Position Limits (Sec. 23.601)

Commission Requirement: Implementing section 4s(j)(1) of the CEA,

Commission regulation 23.601 requires each SD or MSP to establish and

enforce written policies and procedures that are reasonably designed to

monitor for, and prevent violations of, applicable position limits

established by the Commission, a designated contract market (``DCM''),

or a swap execution facility (``SEF'').\42\ The policies and procedures

must include an early warning system and provide for escalation of

violations to senior management (including the firm's governing body).

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\42\ The setting of position limits by the Commission, a DCM, or

a SEF is subject to requirements under the CEA and Commission

regulations other than Sec. 23.601. The setting of position limits

and compliance with such limits is not subject to the Commission's

substituted compliance regime.

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Regulatory Objective: Generally, position limits are implemented to

ensure market integrity, fairness, orderliness, and accurate pricing in

the commodity markets. Commission regulation 23.601 thus seeks to

ensure that SDs and MSPs have established the necessary policies and

procedures to monitor the trading of the firm to prevent violations of

applicable position limits established by the Commission, a DCM, or a

SEF. As part of its Risk Management Program, Sec. 23.601 is intended

to ensure that established position limits are not breached by the SD

or MSP.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as section 4s(j)(1)

of the CEA and Commission regulation 23.601.

Section 912A(1)(ca) of the Corporations Act, which

requires AFSL holders to take reasonable steps to ensure its

representatives comply with the financial services laws, which would

include regulatory position limits.

APS 310 (discussed above) requires an ADI's board and

management to ensure that the ADI meets prudential and statutory

requirements and has management practices to limit risks to prudent

levels.

In addition to the foregoing, the applicant also submitted various

guidelines and required best practices concerning the setting of

internal risk tolerance limits and monitoring for compliance with such

internal limits. Although the Commission recognizes these as prudent

risk management practices, the Commission does not believe that these

provisions are comparable to Sec. 23.601 because Sec. 23.601 requires

monitoring for compliance with external position limits set by the

Commission, a DCM, or a SEF.

Commission Determination: The Commission finds that the Australian

provisions specified above are generally identical in intent to Sec.

23.601 by requiring SDs and MSPs to establish necessary policies and

procedures to monitor the trading of the firm to prevent violations of

applicable position limits established by applicable laws and

regulations, including those of the Commission, a DCM, or a SEF.

Specifically, the Commission finds that the provisions of Australian

law and regulations specified above, while not specific to the issue of

position limit compliance, nevertheless comprehensively require SDs and

MSPs to monitor for regulatory compliance generally, which includes

monitoring for compliance with position limits set pursuant to

applicable law and the responsibility of senior management (including

the board of directors) for such compliance.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the compliance monitoring

requirements of Australian law and regulations, as specified above, are

comparable to and as comprehensive as Sec. 23.601. For the avoidance

of doubt, the Commission notes that this determination may not be

relied on to relieve an SD or MSP from its obligation to strictly

comply with any applicable position limit established by the

Commission, a DCM, or a SEF.

3. Diligent Supervision (Sec. 23.602)

Commission Requirement: Commission regulation 23.602 implements

section 4s(h)(1)(B) of the CEA and requires each SD and MSP to

establish a system to diligently supervise all activities relating to

its business performed by its partners, members, officers, employees,

and agents. The system must be reasonably designed to achieve

compliance with the CEA and CFTC regulations. Commission regulation

23.602 requires that the supervisory system must specifically designate

qualified persons with authority to carry out the supervisory

responsibilities of the SD or MSP for all activities relating to its

business as an SD or MSP.

Regulatory Objective: The Commission's diligent supervision rule

seeks to ensure that SDs and MSPs

[[Page 78872]]

strictly comply with the CEA and the Commission's rules. To this end,

through Sec. 23.602, the Commission seeks to ensure that each SD and

MSP not only establishes the necessary policies and procedures that

would lead to compliance with the CEA and Commission regulations, but

also establishes an effective system of internal oversight and

enforcement of such policies and procedures to ensure that such

policies and procedures are diligently followed.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as section

4s(h)(1)(B) of the CEA and Commission regulation 23.602.

CPS 520 (discussed above) sets forth the fitness

requirements for all APRA regulated institutions. These standards apply

to all directors and senior managers of an ADI as well as other

``responsible persons.'' The applicable key requirements of this

prudential standard are: an ADI must have a Fit and Proper policy that

meets certain standards; the fitness and propriety of a responsible

person must generally be assessed prior to initial appointment and then

re-assessed annually; and an ADI must take steps to ensure that a

person is not appointed to, or does not continue to hold, a responsible

person position for which they are not qualified.

Section 912A(1)(ca) of the Corporations Act requires that

an AFSL licensee take reasonable steps to ensure that its

representatives comply with the financial services laws.

RG 104 (discussed above) sets forth guidance for an AFSL

licensee with respect to supervision. These regulatory guidelines

require that an AFSL licensee have measures for monitoring and

supervising their representatives to determine whether they are

complying with the financial services laws. They also require that an

AFSL licensee take measures to ensure that their representatives who

provide financial services have, and maintain the necessary knowledge

and skills, to competently provide those services.

Commission Determination: The Commission finds that the provisions

of Australian law and regulations specified above are generally

identical in intent to Sec. 23.602 because such standards seek to

ensure that SDs and MSPs strictly comply with applicable law, which

would include the CEA and the Commission's regulations. Through the

provisions specified above, Australian law and regulations seek to

ensure that each SD and MSP not only establishes the necessary policies

and procedures that would lead to compliance with applicable law, which

would include the CEA and Commission regulations, but also establishes

an effective system of internal oversight and enforcement of such

policies and procedures to ensure that such policies and procedures are

diligently followed.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the internal supervision

requirements of the provisions of Australian law and regulations, as

specified above, are comparable to and as comprehensive as Sec.

23.602.

4. Business Continuity and Disaster Recovery (Sec. 23.603)

Commission Requirement: To ensure the proper functioning of the

swaps markets and the prevention of systemic risk more generally,

Commission regulation 23.603 requires each SD and MSP, as part of its

risk management program, to establish a business continuity and

disaster recovery plan that includes procedures for, and the

maintenance of, back-up facilities, systems, infrastructure, personnel,

and other resources to achieve the timely recovery of data and

documentation and to resume operations generally within the next

business day after the disruption.

Regulatory Objective: Commission regulation 23.603 is intended to

ensure that any market disruption affecting SDs and MSPs, whether

caused by natural disaster or otherwise, is minimized in length and

severity. To that end, this requirement seeks to ensure that entities

adequately plan for disruptions and devote sufficient resources capable

of carrying out an appropriate plan within one business day, if

necessary.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as Commission

regulation 23.603.

APRA prudential standard CPS 232 Business Continuity Management

(``CPS 232'') requires each ADI to implement a whole-of-business

approach to business continuity management. Specifically, CPS 232

states that:

A regulated institution must identify, assess, and manage

potential business continuity risks to ensure that it is able to meet

its financial and service obligations to its depositors, policyholders

and other creditors;

The board of a regulated institution must consider

business continuity risks and controls as part of its overall risk

management systems and approve a Business Continuity Management Policy;

A regulated institution must develop and maintain a

Business Continuity Plan that documents procedures and information

which enable the regulated institution to manage business disruptions;

A regulated institution must review the Business

Continuity Plan annually and periodically arrange for its review by the

internal audit function or an external expert; and

A regulated institution must notify APRA in the event of

certain disruptions.

Commission Determination: The Commission finds that the provisions

of Australian law and regulations specified above are generally

identical in intent to Sec. 23.603 because such standards seek to

ensure that any market disruption affecting SDs and MSPs, whether

caused by natural disaster or otherwise, is minimized in length and

severity. To that end, the Commission finds that the provisions of

Australian law and regulations specified above seek to ensure that

entities adequately plan for disruptions and devote sufficient

resources capable of carrying out an appropriate plan in a timely

manner.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the business continuity and

disaster recovery requirements of the provisions of Australian law and

regulations, as specified above, are comparable to and as comprehensive

as Sec. 23.603.

5. Conflicts of Interest (Sec. 23.605)

Commission Requirement: Section 4s(j)(5) of the CEA and Commission

regulation 23.605(c) generally require each SD or MSP to establish

structural and institutional safeguards to ensure that the activities

of any person within the firm relating to research or analysis of the

price or market for any commodity or swap are separated by appropriate

informational partitions within the firm from the review, pressure, or

oversight of persons whose involvement in pricing, trading, or clearing

activities might potentially bias their judgment or supervision.

In addition, section 4s(j)(5) of the CEA and Commission regulation

23.605(d)(1) generally prohibits an SD or MSP from directly or

indirectly interfering with or attempting to influence the decision of

any clearing unit of any affiliated clearing member of a DCO to provide

[[Page 78873]]

clearing services and activities to a particular customer, including:

Whether to offer clearing services to a particular

customer;

Whether to accept a particular customer for clearing

derivatives;

Whether to submit a customer's transaction to a particular

DCO;

Whether to set or adjust risk tolerance levels for a

particular customer; or

Whether to set a customer's fees based on criteria other

than those generally available and applicable to other customers.

Commission regulation 23.605(d)(2) generally requires each SD or

MSP to create and maintain an appropriate informational partition

between business trading units of the SD or MSP and clearing units of

any affiliated clearing member of a DCO to reasonably ensure compliance

with the Act and the prohibitions set forth in Sec. 23.605(d)(1)

outlined above.

The Commission observes that Sec. 23.605(d) works in tandem with

Commission regulation 1.71, which requires FCMs that are clearing

members of a DCO and affiliated with an SD or MSP to create and

maintain an appropriate informational partition between business

trading units of the SD or MSP and clearing units of the FCM to

reasonably ensure compliance with the Act and the prohibitions set

forth in Sec. 1.71(d)(1), which are the same as the prohibitions set

forth in Sec. 23.605(d)(1) outlined above.

Finally, Sec. 23.605(e) requires that each SD or MSP have policies

and procedures that mandate the disclosure to counterparties of

material incentives or conflicts of interest regarding the decision of

a counterparty to execute a derivative on a swap execution facility or

DCM or to clear a derivative through a DCO.

Regulatory Objective: Commission regulation 23.605(c) seeks to

ensure that research provided to the general public by an SD or MSP is

unbiased and free from the influence of the interests of an SD or MSP

arising from the SD's or MSP's trading business.

In addition, the Sec. 23.605(d) (working in tandem with Sec.

1.71) seeks to ensure open access to the clearing of swaps by requiring

that access to and the provision of clearing services provided by an

affiliate of an SD or MSP are not influenced by the interests of an

SD's or MSP's trading business.

Finally, Sec. 23.605(e) seeks to ensure equal access to trading

venues and clearinghouses, as well as orderly and fair markets, by

requiring that each SD and MSP disclose to counterparties any material

incentives or conflicts of interest regarding the decision of a

counterparty to execute a derivative on a SEF or DCM, or to clear a

derivative through a DCO.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as Commission

regulation 23.605(c).

Section 912A(1)(aa) of the Corporations Act requires AFSL

licensees to have adequate arrangements for the management of conflicts

of interest that may arise wholly, or partially, in relation to

activities undertaken by a licensee or a representative of the licensee

in the provision of financial services.

ASIC Regulatory Guide 181 Licensing: Managing conflicts of

interest and ASIC Regulatory Guide 79 Research report providers:

Improving the quality of investment research (specific to research

reports provided in Australia), set out ASIC's expectations regarding

how financial service licensees are to manage conflicts of interest

that arise in relation to the financial services that they provide. The

conflicts management obligation requires that all conflicts of interest

be adequately managed, recognizing that many conflicts of interest can

be managed by a combination of internal controls and disclosures. Where

conflicts cannot be adequately managed through internal controls and/or

disclosure, the ASIC guidelines require that an AFSL holder must avoid

the conflict or refrain from providing the affected financial service.

Section 941A of the Corporations Act requires AFSL

licensees to provide a Financial Services Guide to retail clients if

they provide a financial service to the client.

Section 942B(2)(f) of the Corporations Act states that the

Financial Services Guide must provide disclosures about relationships

that may influence the provision of the financial service.\43\

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\43\ In addition to the foregoing, the applicant referenced

Draft CPS 220. This draft prudential standard, if finalized in a

form similar to its draft form, will require each ADI (including SD

ADIs) to have policies and procedures for identifying, monitoring,

and managing potential and actual conflicts of interest.

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The applicant has represented to the Commission that ASIC and APRA,

in the process of their oversight and enforcement of the foregoing

Australian law and regulations for ADIs and ASFL licensees, would

require any SD or MSP subject to such law and regulations to resolve or

mitigate conflicts of interests in the provision of clearing services

by a clearing member of a DCO that is an affiliate of the SD or MSP, or

the decision of a counterparty to execute a derivative on a SEF or DCM,

or clear a derivative through a DCO, through appropriate information

firewalls and disclosures.

Commission Determination: The Commission finds that the provisions

of Australian law and regulations specified above with respect to

conflicts of interest that may arise in producing or distributing

research are generally identical in intent to Sec. 23.605(c) because

such standards seek to ensure that research provided to the general

public by an SD is unbiased and free from the influence of the

interests of an SD arising from the SD's trading business.

With respect to conflicts of interest that may arise in the

provision of clearing services by an affiliate of an SD or MSP, the

Commission further finds that although the general conflicts of

interest prevention requirements under the Australian law and

regulations specified above do not require with specificity that access

to and the provision of clearing services provided by an affiliate of

an SD or MSP not be improperly influenced by the interests of an SD's

or MSP's trading business, such general requirements would require

prevention and remediation of such improper influence when recognized

or discovered. Thus such standards would ensure open access to

clearing.

Finally, although not as specific as the requirements of Sec.

23.605(e) (Undue influence on counterparties), the Commission finds

that the general disclosure requirements of the Australian law and

regulations specified above would ensure equal access to trading venues

and clearinghouses by requiring that each SD and MSP disclose to

counterparties any material incentives or conflicts of interest

regarding the decision of a counterparty to execute a derivative on a

SEF or DCM, or to clear a derivative through a DCO.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the provisions of Australian law

and regulations specified above in relation to conflicts of interest

are comparable to and as comprehensive as Sec. 23.605.

6. Availability of Information for Disclosure and Inspection (Sec.

23.606)

Commission Requirement: Commission regulation 23.606 implements

sections 4s(j)(3) and (4) of the CEA, and requires each SD and MSP to

disclose to the Commission, and an

[[Page 78874]]

SD's or MSP's U.S. prudential regulator (if any) comprehensive

information about its swap activities, and to establish and maintain

reliable internal data capture, processing, storage, and other

operational systems sufficient to capture, process, record, store, and

produce all information necessary to satisfy its duties under the CEA

and Commission regulations. Such systems must be designed to provide

such information to the Commission and an SD's or MSP's U.S. prudential

regulator within the time frames set forth in the CEA and Commission

regulations and upon request.

Regulatory Objective: Commission regulation 23.606 seeks to ensure

that each SD and MSP captures and maintains comprehensive information

about their swap activities, and is able to retrieve and disclose such

information to the Commission and its U.S. prudential regulator, if

any, as necessary for compliance with the CEA and the Commission's

regulations and for purposes of Commission oversight, as well as

oversight by the SD's or MSP's U.S. prudential regulator, if any.

The Commission observes that it would be impossible to meet the

regulatory objective of Sec. 23.606 unless the required information is

available to the Commission and any U.S. prudential regulator under the

foreign legal regime. Thus, a comparability determination with respect

to the information access provisions of Sec. 23.606 would be premised

on whether the relevant information would be available to the

Commission and any U.S. prudential regulator of the SD or MSP, not on

whether an SD or MSP must disclose comprehensive information to its

regulator in its home jurisdiction.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as Commission

regulation 23.606.

Section 912C of the Corporations Act and sections 29-33 of the ASIC

Act enable ASIC to gather information from AFSL licensees, including:

A statement containing specified information about the

financial services provided by the AFSL holder or its representatives,

or the financial services business carried on by the licensee;

Inspection of books without charge;

Issuance of a notice to a body corporate to produce books

about the affairs of the body corporate;

Issuance of a notice to a person who carries out a

financial services business to produce books relating to, among other

things, a dealing in financial products, or the character or financial

position of the business;

Issuance of a notice to produce books relating to the

supply of financial services; and

Issuance of a notice to produce documents in the person's

possession that relate to the affairs of the body corporate.

In addition, Section 988A of the Corporations Act requires AFSL

license holders to keep financial records that correctly record and

explain the transactions and financial position of the financial

services business carried out by the licensee.

Part 2.3 of the ASIC Derivative Transaction Rules (Reporting) 2013

places certain requirements on reporting entities (which includes the

five SD ADIs as reporting entities from October 1, 2013). Specifically,

Rule 2.3.1 requires reporting entities to keep records in relation to

OTC derivatives transactions (including swaps) that enable the

reporting entity to demonstrate it has complied with the Derivative

Transaction Rules, and must keep the records for a period of at least

five years from the date the record is made or amended. Reporting

entities must also keep a record of all information that it is required

to be reported under such rules.

Rule 2.3.2 further requires a reporting entity to, on request by

ASIC, provide ASIC within a reasonable time with records or other

information relating to compliance with or determining whether there

has been compliance with the Rules.

Commission Determination: The Commission finds that the Australian

law and regulations specified above are generally identical in intent

to Sec. 23.606 because such standards seek to ensure that each SD and

MSP captures and stores comprehensive information about their swap

activities, and are able to retrieve and disclose such information as

necessary for compliance with applicable law and for purposes of

regulatory oversight.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the Australian law and

regulations with respect to the availability of information for

inspection and disclosure, as specified above, are comparable to, and

as comprehensive as, Sec. 23.606, with the exception of Sec.

23.606(a)(2) concerning the requirement that an SD or MSP make

information required by Sec. 23.606(a)(1) available promptly upon

request to Commission staff and the staff of an applicable U.S.

prudential regulator. The applicant has not submitted any provision of

law or regulations applicable in Australia upon which the Commission

could make a finding that SDs and MSPs would be required to retrieve

and disclose comprehensive information about their swap activities to

the Commission or any U.S. prudential regulator as necessary for

compliance with the CEA and Commission regulations, and for purposes of

Commission oversight and the oversight of any U.S. prudential

regulator.

Notwithstanding that the Commission has not determined that the

requirements of Australian law and regulations are comparable to and as

comprehensive as Sec. 23.606(a)(2), any SD or MSP to which both Sec.

23.606 and the Australian law and regulations specified above are

applicable would generally be deemed to be in compliance with Sec.

23.606(a)(2) if that SD or MSP complies with the Australian law and

regulations specified above, subject to compliance with the requirement

that it produce information to Commission staff and the staff of an

applicable U.S. prudential regulator in accordance with Sec.

23.606(a)(2).

7. Clearing Member Risk Management (Sec. 23.609)

Commission Requirement: Commission regulation 23.609 generally

requires each SD or MSP that is a clearing member of a DCO to:

Establish risk-based limits based on position size, order

size, margin requirements, or similar factors;

Screen orders for compliance with the risk-based limits;

Monitor for adherence to the risk-based limits intra-day

and overnight;

Conduct stress tests under extreme but plausible

conditions of all positions at least once per week;

Evaluate its ability to meet initial margin requirements

at least once per week;

Evaluate its ability to meet variation margin requirements

in cash at least once per week;

Evaluate its ability to liquidate positions it clears in

an orderly manner, and estimate the cost of liquidation; and

Test all lines of credit at least once per year.

Regulatory Objective: Through Commission regulation 23.609, the

Commission seeks to ensure the financial integrity of the markets and

the clearing system, to avoid systemic risk, and to protect customer

funds. Effective risk management by SDs and MSPs that are clearing

members is essential to achieving these objectives. A failure of risk

management can cause

[[Page 78875]]

a clearing member to become insolvent and default to a DCO. Such

default can disrupt the markets and the clearing system and harm

customers.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as Commission

regulation 23.609.

The regulatory framework for ADIs under the Banking Act is

based on the banking supervision principles published by the Basel

Committee on Banking Supervision.\44\ This prudential framework

includes requirements (largely set out in detailed and separate

prudential standards) regarding capital adequacy, credit risk, market

risk, liquidity, credit quality, large exposures, associations with

related entities, outsourcing, business continuity management, audit

and related arrangements for prudential reporting, governance, and fit

and proper management.

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\44\ The Corporations Act requires AFSL holders to comply with

risk management requirements, however, this requirement does not

apply where an entity is regulated by APRA. See section 912A(1)(h).

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In particular, APS 310 (discussed above) requires an ADI's

board and management to ensure that the ADI meets prudential and

statutory requirements and has management practices to limit risks to

prudent levels. APS 310 mandates that the ADI's risk management

practices must be detailed in descriptions of risk management systems

that must be regularly reviewed and updated, at least annually, to take

account of changing circumstances.

APRA Prudential standard APS 116 Capital Adequacy: Market

Risk (``APS 116'') states that the board, or a board committee, of an

ADI must ensure that the ADI has in place adequate systems to identify,

measure and manage market risk, including identifying responsibilities,

providing adequate separation of duties and avoiding conflicts of

interest.

For certain trading positions, APS 116 states that an ADI

must have ``clearly defined policies and procedures for the active

management of positions such that: Positions are managed on a trading

desk; position limits are set and monitored for appropriateness;

positions are marked-to-market daily and when marking-to-model the

parameters are assessed on a daily basis; and positions are reported to

senior management as an integral part of the institution's risk

management process.

If an ADI has received approval to apply an ``internal

model'' for market risk, as opposed to the ``standard method'' of

calculating capital requirements, APS 116 requires the ADI to have an

independent risk control unit that is responsible for the design and

implementation of the ADI's market risk management system. The risk

control unit must produce and analyze daily reports on the output of

the ADI's risk measurement model, including an evaluation of limit

utilization. This risk control unit must be independent from business

trading and other risk taking units and must report directly to senior

management of the ADI.

If an ADI has received approval to apply an ``internal

model'' for market risk, APS 116 states that the board or a board

committee and senior management of an ADI must be actively involved in

the risk control process. Daily reports must be prepared by the

independent risk control unit and must be reviewed by a level of

management with sufficient seniority and authority to enforce

reductions of positions.

APS 116 states that an ADI must ensure that an independent

review of the risk measurement system and overall risk management

process is carried out initially (i.e., at the time when model approval

is sought) and then regularly as part of the ADI's internal audit

process.

Further, on June 4, 2013, APRA issued a letter to all ADIs,

including the Australian SDs outlining the framework for the

application of risk management requirements to the Australian banks'

membership of CCPs. Such a framework should include, at a minimum:

application of appropriate systems and controls to monitor, on a

continuing basis, the risk that membership of and conduct of business

through a CCP or multiple CCPs may create and to manage such risk. This

would include application of limits on potential risk exposures. These

clearly articulated conditions together with APRA's prudential

standards are designed to achieve a comparable regulatory outcome as

Commission regulation 23.609.

Specifically, APRA has represented to the Commission that, in the

process of its oversight and enforcement of the foregoing Australian

law, regulations, and prudential standards, any SD or MSP subject to

such standards that is a clearing member of a DCO would be expected to

have established risk-based limits and a compliance and assessment

framework for these limits consistent with the Commission's

requirements for a clearing member and set out in the SD's or MSP's

risk management policy framework. APRA would expect banks in Australia

to adhere to their risk limit policies and any targeted review would

examine the banks' risk management policy framework that captures these

regulatory obligations.

Commission Determination: The Commission finds that the Australian

law and regulations specified above are generally identical in intent

to Sec. 23.609 because such standards seek to ensure the financial

integrity of the markets and the clearing system, to avoid systemic

risk, and to protect customer funds.

The Commission notes that the Australian law and regulations

specified above are not as specific as Sec. 23.609 with respect to

ensuring that SDs and MSPs that are clearing members of a DCO establish

detailed procedures and limits for clearing member risk management

purposes. Nevertheless, the Commission finds that the general

requirements under the Australian law and regulations specified above,

implemented in the context of clearing member risk management and

pursuant to the representations of ASIC and APRA, meet the Commission's

regulatory objective specified above.

Based on the foregoing and the representations above, the

Commission hereby determines that the clearing member risk management

requirements of the Australian law and regulations specified above are

comparable to and as comprehensive as Sec. 23.609.

C. Swap Data Recordkeeping (Sec. Sec. 23.201 and 23.203)

Commission Requirement: Sections 4s(f)(1)(B) and 4s(g)(1) of the

CEA, and Commission regulation 23.201 generally require SDs and MSPs to

retain records of each transaction, each position held, general

business records (including records related to complaints and sales and

marketing materials), records related to governance, financial records,

records of data reported to SDRs, and records of real-time reporting

data along with a record of the date and time the SD or MSP made such

reports. Transaction records must be kept in a form and manner

identifiable and searchable by transaction and counterparty.

Commission regulation 23.203, requires SDs and MSPs to maintain

records of a swap transaction until the termination, maturity,

expiration, transfer, assignment, or novation date of the transaction,

and for a period of five years after such date. Records must be

``readily accessible'' for the first 2 years of the 5 year retention

period (consistent with Sec. 1.31).

[[Page 78876]]

The Commission notes that the comparability determination below

with respect to Sec. Sec. 23.201 and 23.203 encompasses both swap data

recordkeeping generally and swap data recordkeeping relating to

complaints and marketing and sales materials in accordance with Sec.

23.201(b)(3) and (4).\45\

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\45\ See the Guidance for a discussion of the availability of

substituted compliance with respect to swap data recordkeeping, 78

FR 45332-33.

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Regulatory Objective: Through the Commission's regulations

requiring SDs and MSPs to keep comprehensive records of their swap

transactions and related data, the Commission seeks to ensure the

effectiveness of the internal controls of SDs and MSPs, and

transparency in the swaps market for regulators and market

participants.

The Commission's regulations require SDs and MSPs to keep swap data

in a level of detail sufficient to enable regulatory authorities to

understand an SD's or MSP's swaps business and to assess its swaps

exposure.

By requiring comprehensive records of swap data, the Commission

seeks to ensure that SDs and MSPs employ effective risk management, and

strictly comply with Commission regulations. Further, such records

facilitate effective regulatory oversight.

The Commission observes that it would be impossible to meet the

regulatory objective of Sec. Sec. 23.201 and 23.203 unless the

required information is available to the Commission and any U.S.

prudential regulator under the foreign legal regime. Thus, a

comparability determination with respect to the information access

provisions of Sec. 23.203 would be premised on whether the relevant

information would be available to the Commission and any U.S.

prudential regulator of the SD or MSP, not on whether an SD or MSP must

disclose comprehensive information to its regulator in its home

jurisdiction.

Comparable Australian Law and Regulations: The applicant has

represented to the Commission that the following provisions of law and

regulations applicable in Australia are in full force and effect in

Australia, and comparable to and as comprehensive as sections

4s(f)(1)(B) and 4s(g)(1) of the CEA and Sec. Sec. 23.201 and 23.203.

Section 286 of the Corporations Act requires firms to keep

financial records that correctly record and explain its transactions,

financial position and performance for 7 years after the transactions

are completed.

Section 988A of the Corporations Act requires AFSL

licensees to keep financial records that correctly record and explain

the transactions and financial position of the licensee's financial

services business.

Section 988E of the Corporations Act specifies a list of

categories of information to be shown in the records of an AFSL

licensee, including records of all money received or paid by the

licensee; acquisitions and disposals of financial products, the charges

and credits arising from them, and the names of the person acquiring or

disposing of each of those products; all income from commissions,

interest and other sources and all payments of interest, commissions

and other expenses; and records pertaining to the securities or managed

investment products that are the property of the licensee or held by

the licensee for other persons.

Corporations regulation 7.8.11 further specifies

categories of information to be shown in records, including all

financial products dealt with by the AFSL licensee under instructions

from another person; and records pertaining to property held by the

licensee for another person.

Corporations regulation 7.8.12 further specifies

categories of information to be shown in records, including separate

particulars of every transaction by the AFSL licensee, the date of such

transactions, and copies of acknowledgments of the receipt of financial

products or documents of title to financial products.

Part 2.3 of the ASIC Derivative Transaction Rules (Reporting) 2013

places certain requirements on reporting entities (which includes the

five SD ADIs as reporting entities from October, 1 2013). Specifically,

Rule 2.3.1 requires reporting entities to keep records in relation to

OTC derivatives transactions (including swaps) that enable the

reporting entity to demonstrate it has complied with the Derivative

Transaction Rules, and must keep the records for a period of at least

five years from the date the record is made or amended. Reporting

entities must also keep a record of all information that it is required

to be reported under such rules.

Rule 2.3.2 further requires a reporting entity to, on request by

ASIC, provide ASIC within a reasonable time with records or other

information relating to compliance with or determining whether there

has been compliance with the Rules.

Commission Determination: The Commission finds that the provisions

of Australian law and regulations specified above are generally

identical in intent to Sec. Sec. 23.201 and 23.203 because such

provisions seek to ensure the effectiveness of the internal controls of

SDs and MSPs, and transparency in the swaps market for regulators and

market participants.

In addition, the Commission finds that the provisions of Australian

law and regulations specified above require SDs and MSPs to keep swap

data in a level of detail sufficient to enable regulatory authorities

to understand an SD's or MSP's swaps business and to assess its swaps

exposure.

Finally, the Commission finds that the provisions of Australian law

and regulations specified above, by requiring comprehensive records of

swap data, seek to ensure that SDs and MSPs employ effective risk

management, seek to ensure that SDs and MSPs strictly comply with

applicable regulatory requirements (including the CEA and Commission

regulations), and that such records facilitate effective regulatory

oversight.

Based on the foregoing and the representations of the applicant,

the Commission hereby determines that the requirements of Australian

law and regulation with respect to swap data recordkeeping, as

specified above, are comparable to, and as comprehensive as, Sec. Sec.

23.201 and 23.203, with the exception of Sec. 23.203(b)(2) concerning

the requirement that an SD or MSP make records required by Sec. 23.201

open to inspection by any representative of the Commission, the United

States Department of Justice, or any applicable U.S. prudential

regulator. The applicant has not submitted any provision of Australian

law or regulation upon which the Commission could make a finding that

SDs and MSPs would be required to make records required by Sec. 23.201

open to inspection by any representative of the Commission, the United

States Department of Justice, or any applicable U.S. prudential

regulator.

Notwithstanding that the Commission has not determined that the

requirements of Australian law and regulations are comparable to and as

comprehensive as Sec. 23.203(b)(2), any SD or MSP to which both Sec.

23.203 and the Australian law and regulations specified above are

applicable would generally be deemed to be in compliance with Sec.

23.203(b)(2) if that SD or MSP complies with the Australian law and

regulations specified above, subject to compliance with the requirement

that it make records required by Sec. 23.201 open to inspection by any

representative of the Commission, the United States Department of

Justice, or any applicable U.S. prudential regulator in accordance with

Sec. 23.203(b)(2).

[[Page 78877]]

Issued in Washington, DC on December 20, 2013, by the

Commission.

Melissa D. Jurgens,

Secretary of the Commission.

Appendices to Comparability Determination for Australia: Certain

Entity-Level Requirements

Appendix 1--Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Chilton and

Wetjen voted in the affirmative. Commissioner O'Malia voted in the

negative.

Appendix 2--Statement of Chairman Gary Gensler and Commissioners

Chilton and Wetjen

We support the Commission's approval of broad comparability

determinations that will be used for substituted compliance

purposes. For each of the six jurisdictions that has registered swap

dealers, we carefully reviewed each regulatory provision of the

foreign jurisdictions submitted to us and compared the provision's

intended outcome to the Commission's own regulatory objectives. The

resulting comparability determinations for entity-level requirements

permit non-U.S. swap dealers to comply with regulations in their

home jurisdiction as a substitute for compliance with the relevant

Commission regulations.

These determinations reflect the Commission's commitment to

coordinating our efforts to bring transparency to the swaps market

and reduce its risks to the public. The comparability findings for

the entity-level requirements are a testament to the comparability

of these regulatory systems as we work together in building a strong

international regulatory framework.

In addition, we are pleased that the Commission was able to find

comparability with respect to swap-specific transaction-level

requirements in the European Union and Japan.

The Commission attained this benchmark by working cooperatively

with authorities in Australia, Canada, the European Union, Hong

Kong, Japan, and Switzerland to reach mutual agreement. The

Commission looks forward to continuing to collaborate with both

foreign authorities and market participants to build on this

progress in the months and years ahead.

Appendix 3--Dissenting Statement of Commissioner Scott D. O'Malia

I respectfully dissent from the Commodity Futures Trading

Commission's (``Commission'') approval of the Notices of

Comparability Determinations for Certain Requirements under the laws

of Australia, Canada, the European Union, Hong Kong, Japan, and

Switzerland (collectively, ``Notices''). While I support the narrow

comparability determinations that the Commission has made, moving

forward, the Commission must collaborate with foreign regulators to

harmonize our respective regimes consistent with the G-20 reforms.

However, I cannot support the Notices because they: (1) Are

based on the legally unsound cross-border guidance (``Guidance'');

\1\ (2) are the result of a flawed substituted compliance process;

and (3) fail to provide a clear path moving forward. If the

Commission's objective for substituted compliance is to develop a

narrow rule-by-rule approach that leaves unanswered major regulatory

gaps between our regulatory framework and foreign jurisdictions,

then I believe that the Commission has successfully achieved its

goal today.

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\1\ Interpretive Guidance and Policy Statement Regarding

Compliance with Certain Swap Regulations, 78 FR 45292 (Jul. 26,

2013).

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Determinations Based on Legally Unsound Guidance

As I previously stated in my dissent, the Guidance fails to

articulate a valid statutory foundation for its overbroad scope and

inconsistently applies the statute to different activities.\2\

Section 2(i) of the Commodity Exchange Act (``CEA'') states that the

Commission does not have jurisdiction over foreign activities unless

``those activities have a direct and significant connection with

activities in, or effect on, commerce of the United States * * *''

\3\ However, the Commission never properly articulated how and when

this limiting standard on the Commission's extraterritorial reach is

met, which would trigger the application of Title VII of the Dodd-

Frank Act \4\ and any Commission regulations promulgated thereunder

to swap activities that are outside of the United States. Given this

statutorily unsound interpretation of the Commission's

extraterritorial authority, the Commission often applies CEA section

2(i) inconsistently and arbitrarily to foreign activities.

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\2\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.

\3\ CEA section 2(i); 7 U.S.C. 2(i).

\4\ Title VII of the Dodd-Frank Wall Street Reform and Consumer

Protection Act, Public Law 111-203, 124 Stat. 1376 (2010).

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Accordingly, because the Commission is relying on the legally

deficient Guidance to make its substituted compliance

determinations, and for the reasons discussed below, I cannot

support the Notices. The Commission should have collaborated with

foreign regulators to agree on and implement a workable regime of

substituted compliance, and then should have made determinations

pursuant to that regime.

Flawed Substituted Compliance Process

Substituted compliance should not be a case of picking a set of

foreign rules identical to our rules, determining them to be

``comparable,'' but then making no determination regarding rules

that require extensive gap analysis to assess to what extent each

jurisdiction is, or is not, comparable based on overall outcomes of

the regulatory regimes. While I support the narrow comparability

determinations that the Commission has made, I am concerned that in

a rush to provide some relief, the Commission has made substituted

compliance determinations that only afford narrow relief and fail to

address major regulatory gaps between our domestic regulatory

framework and foreign jurisdictions. I will address a few examples

below.

First, earlier this year, the OTC Derivatives Regulators Group

(``ODRG'') agreed to a number of substantive understandings to

improve the cross-border implementation of over-the-counter

derivatives reforms.\5\ The ODRG specifically agreed that a

flexible, outcomes-based approach, based on a broad category-by-

category basis, should form the basis of comparability

determinations.\6\

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\5\ http://www.cftc.gov/PressRoom/PressReleases/pr6678-13.

\6\ http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/odrgreport.pdf. The ODRG agreed to six understandings.

Understanding number 2 states that ``[a] flexible, outcomes-based

approach should form the basis of final assessments regarding

equivalence or substituted compliance.''

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However, instead of following this approach, the Commission has

made its comparability determinations on a rule-by-rule basis. For

example, in Japan's Comparability Determination for Transaction-

Level Requirements, the Commission has made a positive comparability

determination for some of the detailed requirements under the swap

trading relationship documentation provisions, but not for other

requirements.\7\ This detailed approach clearly contravenes the

ODRG's understanding.

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\7\ The Commission made a positive comparability determination

for Commission regulations 23.504(a)(2), (b)(1), (b)(2), (b)(3),

(b)(4), (c), and (d), but not for Commission regulations

23.504(b)(5) and (b)(6).

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Second, in several areas, the Commission has declined to

consider a request for a comparability determination, and has also

failed to provide an analysis regarding the extent to which the

other jurisdiction is, or is not, comparable. For example, the

Commission has declined to address or provide any clarity regarding

the European Union's regulatory data reporting determination, even

though the European Union's reporting regime is set to begin on

February 12, 2014. Although the Commission has provided some limited

relief with respect to regulatory data reporting, the lack of

clarity creates unnecessary uncertainty, especially when the

European Union's reporting regime is set to begin in less than two

months.

Similarly, Japan receives no consideration for its mandatory

clearing requirement, even though the Commission considers Japan's

legal framework to be comparable to the U.S. framework. While the

Commission has declined to provide even a partial comparability

determination, at least in this instance the Commission has provided

a reason: the differences in the scope of entities and products

subject to the clearing requirement.\8\ Such treatment creates

uncertainty and is contrary to increased global harmonization

efforts.

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\8\ Yen-denominated interest rate swaps are subject to the

mandatory clearing requirement in both the U.S. and Japan.

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Third, in the Commission's rush to meet the artificial deadline

of December 21, 2013, as established in the Exemptive Order

Regarding Compliance with Certain Swap

[[Page 78878]]

Regulations (``Exemptive Order''),\9\ the Commission failed to

complete an important piece of the cross-border regime, namely,

supervisory memoranda of understanding (``MOUs'') between the

Commission and fellow regulators.

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\9\ Exemptive Order Regarding Compliance With Certain Swap

Regulations, 78 FR 43785 (Jul. 22, 2013).

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I have previously stated that these MOUs, if done right, can be

a key part of the global harmonization effort because they provide

mutually agreed-upon solutions for differences in regulatory

regimes.\10\ Accordingly, I stated that the Commission should be

able to review MOUs alongside the respective comparability

determinations and vote on them at the same time. Without these

MOUs, our fellow regulators are left wondering whether and how any

differences, such as direct access to books and records, will be

resolved.

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\10\ http://www.cftc.gov/PressRoom/SpeechesTestimony/opaomalia-29.

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Finally, as I have consistently maintained, the substituted

compliance process should allow other regulatory bodies to engage

with the full Commission.\11\ While I am pleased that the Notices

are being voted on by the Commission, the full Commission only

gained access to the comment letters from foreign regulators on the

Commission's comparability determination draft proposals a few days

ago. This is hardly a transparent process.

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\11\ http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement071213b.

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Unclear Path Forward

Looking forward to next steps, the Commission must provide

answers to several outstanding questions regarding these

comparability determinations. In doing so, the Commission must

collaborate with foreign regulators to increase global

harmonization.

First, there is uncertainty surrounding the timing and outcome

of the MOUs. Critical questions regarding information sharing,

cooperation, supervision, and enforcement will remain unanswered

until the Commission and our fellow regulators execute these MOUs.

Second, the Commission has issued time-limited no-action relief

for the swap data repository reporting requirements. These

comparability determinations will be done as separate notices.

However, the timing and process for these determinations remain

uncertain.

Third, the Commission has failed to provide clarity on the

process for addressing the comparability determinations that it

declined to undertake at this time. The Notices only state that the

Commission may address these requests in a separate notice at a

later date given further developments in the law and regulations of

other jurisdictions. To promote certainty in the financial markets,

the Commission must provide a clear path forward for market

participants and foreign regulators.

The following steps would be a better approach: (1) The

Commission should extend the Exemptive Order to allow foreign

regulators to further implement their regulatory regimes and

coordinate with them to implement a harmonized substituted

compliance process; (2) the Commission should implement a flexible,

outcomes-based approach to the substituted compliance process and

apply it similarly to all jurisdictions; and (3) the Commission

should work closely with our fellow regulators to expeditiously

implement MOUs that resolve regulatory differences and address

regulatory oversight issues.

Conclusion

While I support the narrow comparability determinations that the

Commission has made, it was my hope that the Commission would work

with foreign regulators to implement a substituted compliance

process that would increase the global harmonization effort. I am

disappointed that the Commission has failed to implement such a

process.

I do believe that in the longer term, the swaps regulations of

the major jurisdictions will converge. At this time, however, the

Commission's comparability determinations have done little to

alleviate the burden of regulatory uncertainty and duplicative

compliance with both U.S. and foreign regulations.

The G-20 process delineated and put in place the swaps market

reforms in G-20 member nations. It is then no surprise that the

Commission must learn to coordinate with foreign regulators to

minimize confusion and disruption in bringing much needed clarity to

the swaps market. For all these shortcomings, I respectfully dissent

from the Commission's approval of the Notices.

[FR Doc. 2013-30974 Filed 12-26-13; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: December 27, 2013