2023-06248
[Federal Register Volume 88, Number 72 (Friday, April 14, 2023)]
[Proposed Rules]
[Pages 22934-22955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-06248]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 39
RIN 3038-AF21
Derivatives Clearing Organization Risk Management Regulations To
Account for the Treatment of Separate Accounts by Futures Commission
Merchants
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)
is proposing to amend its derivatives clearing organization (DCO) risk
management regulations adopted under the Commodity Exchange Act (CEA)
to permit futures commission merchants (FCMs) that are clearing members
(clearing FCMs) to treat the
[[Page 22935]]
separate accounts of a single customer as accounts of separate entities
for purposes of certain Commission regulations. The proposed amendments
would establish the conditions under which a DCO may permit such
separate account treatment.
DATES: Comments must be received on or before June 13, 2023.
ADDRESSES: You may submit comments, identified by RIN 3038-AF21, by any
of the following methods:
CFTC Comments Portal: https://comments.cftc.gov. Select
the ``Submit Comments'' link for this rulemaking and follow the
instructions on the Public Comment Form.
Mail: Send to Christopher Kirkpatrick, Secretary of the
Commission, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street NW, Washington, DC 20581.
Hand Delivery/Courier: Follow the same instructions as for
Mail, above.
Please submit your comments using only one of these methods.
Submissions through the CFTC Comments Portal are encouraged. All
comments must be submitted in English, or if not, accompanied by an
English translation. Comments will be posted as received to https://comments.cftc.gov. You should submit only information that you wish to
make available publicly. If you wish the Commission to consider
information that you believe is exempt from disclosure under the
Freedom of Information Act, a petition for confidential treatment of
the exempt information may be submitted according to the procedures
established in Sec. 145.9 of the Commission's regulations. The
Commission reserves the right, but shall have no obligation, to review,
pre-screen, filter, redact, refuse or remove any or all of your
submission from https://comments.cftc.gov that it may deem to be
inappropriate for publication, such as obscene language.
FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel,
Division of Clearing and Risk, at 202-418-5092 or [email protected],
or Daniel O'Connell, Special Counsel, Division of Clearing and Risk, at
202-418-5583 or [email protected], at the Commodity Futures Trading
Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC
20581.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
A. The Commission's Customer Funds Protection Regulations
B. The Divisions' No-Action Position
II. Proposed Amendments to Regulation Sec. 39.13
A. Overview of Proposed Regulation Sec. 39.13(j)
B. Proposed Regulation Sec. 39.13(j)(1)
C. Proposed Regulation Sec. 39.13(j)(2)
D. Proposed Regulation Sec. 39.13(j)(3)
E. Proposed Regulation Sec. 39.13(j)(4)
F. Proposed Regulation Sec. 39.13(j)(5) through (10)
G. Proposed Regulation Sec. 39.13(j)(11)
H. Proposed Regulation Sec. 39.13(j)(12)
I. Proposed Regulation Sec. 39.13(j)(13)
J. Proposed Regulation Sec. 39.13(j)(14)
III. Cost Benefit Considerations
A. Statutory and Regulatory Background
B. Consideration of the Costs and Benefits of the Commission's
Action
C. Costs and Benefits of the Commission's Action as Compared to
Alternatives
D. Section 15(a) Factors
IV. Related Matters
A. Antitrust Considerations
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
I. Background
A. The Commission's Customer Funds Protection Regulations
Two of the fundamental purposes of the CEA are the avoidance of
systemic risk and the protection of market participants from misuses of
customer assets.\1\ The Commission has promulgated a number of
regulations in furtherance of those objectives, including regulations
designed to ensure that clearing FCMs appropriately margin customer
accounts, and are not induced to cover one customer's margin shortfall
with another customer's funds. In addition to protecting customer
assets, these regulations serve the purpose of avoidance of systemic
risk by mitigating the risk that a customer default in its obligations
to a clearing FCM results in the clearing FCM in turn defaulting on its
obligations to a DCO, which could adversely affect the stability of the
broader financial system.
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\1\ Section 3(b) of the CEA, 7 U.S.C. 5(b).
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Section 4d(a)(2) of the CEA and Commission regulation Sec. 1.20(a)
require an FCM to separately account for and segregate all money,
securities, and property which it has received to margin, guarantee, or
secure the trades or contracts of its commodity customers.\2\
Additionally, section 4d(a)(2) of the CEA and Commission regulation
Sec. 1.22(a) prohibit an FCM from using the money, securities, or
property of one customer to margin or settle the trades or contracts of
another customer.\3\ This requirement is designed to prevent disparate
treatment of customers by an FCM and mitigate the risk that there will
be insufficient funds in segregation to pay all customer claims if the
FCM becomes insolvent.\4\ Section 4d(a)(2) of the CEA and Commission
regulations Sec. Sec. 1.20 and 1.22 effectively require an FCM to add
its own funds into segregation in an amount equal to the sum of all
customer deficits to prevent the FCM from being induced to use one
customer's funds to margin or carry another customer's trades or
contracts.\5\
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\2\ 7 U.S.C. 6d(a)(2); 17 CFR 1.20(a).
\3\ 7 U.S.C. 6d(a)(2); 17 CFR 1.22(a).
\4\ Prohibition of Guarantees Against Loss, 46 FR 11668, 11669
(Feb. 10, 1981).
\5\ 7 U.S.C. 6d(a)(2); 17 CFR 1.20; 17 CFR 1.22; Prohibition of
Guarantees Against Loss, 46 FR at 11669.
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Section 5b of the CEA,\6\ as amended by the Dodd-Frank Wall Street
Reform and Consumer Protection Act of 2010,\7\ sets forth eighteen core
principles with which DCOs must comply to register and maintain
registration as DCOs with the Commission. In 2011, the Commission
adopted regulations for DCOs to implement Core Principle D, which
concerns risk management.\8\ These regulations include a number of
provisions that require a DCO to in turn require that its clearing
members take certain steps to support their own risk management in
order to mitigate the risk that such clearing members pose to the DCO.
Specifically, regulation Sec. 39.13(g)(8)(iii) provides that a DCO
shall require its clearing members to ensure that their customers do
not withdraw funds from their accounts with such clearing members
unless the net liquidating value plus the margin deposits remaining in
the customer's account after the withdrawal would be sufficient to meet
the customer initial margin requirements with respect to the products
or portfolios in the customer's account, which are cleared by the
DCO.\9\ Regulation Sec. 39.13(g)(8)(iii) was designed to mitigate the
risk that a clearing member fails to hold, from a customer, funds
sufficient to cover the required initial margin for the customer's
cleared positions, and, in light of the use of omnibus margin accounts,
mitigate the likelihood that the clearing member will effectively cover
one customer's margin shortfall using another customer's funds.
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\6\ 7 U.S.C. 7a-1(b).
\7\ Dodd-Frank Wall Street Reform and Consumer Protection Act,
Public Law 111-203, 124 Stat. 1376 (2010).
\8\ Section 5b(c)(2)(D) of the CEA, 7 U.S.C. 7a-1(c)(2)(D);
Derivatives Clearing Organization General Provisions and Core
Principles, 76 FR 69334, 69335 (Nov. 8, 2011).
\9\ 17 CFR 39.13(g)(8)(iii).
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In adopting regulation Sec. 39.13(g)(8)(iii), the Commission
[[Page 22936]]
stated \10\ that the regulation was consistent with the definition of
``Margin Funds Available for Disbursement'' in the Margins Handbook
\11\ prepared by the Joint Audit Committee (JAC), a representative
committee of U.S. futures exchanges and the National Futures
Association (NFA).\12\ The Commission noted that while designated self-
regulatory organizations (DSROs) reviewed FCMs to determine whether
they appropriately prohibited their customers from withdrawing funds
from their futures accounts, it was unclear to what extent that
requirement applied to cleared swap accounts when such swaps were
executed on a designated contract market that participated in the
JAC.\13\ The Commission also noted that clearing members that cleared
only swaps that were executed on a swap execution facility were not
subject to the requirements of the JAC Margins Handbook or review by a
DSRO.\14\ Thus, regulation Sec. 39.13(g)(8)(iii) was also designed to
provide certainty as to the scope of these risk mitigation and customer
protection standards as they relate to futures and swap positions
carried in customer accounts by clearing members and cleared by a DCO.
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\10\ Derivatives Clearing Organization General Provisions and
Core Principles, 76 FR at 69379.
\11\ JAC Margins Handbook, available at https://www.jacfutures.com/jac/MarginHandBookWord.aspx.
\12\ Joint Audit Committee, JAC Members, available at https://www.jacfutures.com/jac/Members.aspx. Self-regulatory organizations,
such as commodity exchanges and registered futures associations
(e.g., NFA), enforce minimum financial and reporting requirements,
among other responsibilities, for their members. See Commission
regulation Sec. 1.3, 17 CFR 1.3. Pursuant to Commission regulation
Sec. 1.52(d), when an FCM is a member of more than one self-
regulatory organization, the self-regulatory organizations may
decide among themselves which of them will assume primary
responsibility for these regulatory duties and, upon approval of
such a plan by the Commission, the self-regulatory organization
assuming such primary responsibility will be appointed the
designated self-regulatory organization for the FCM. 17 CFR 1.52(d).
\13\ Derivatives Clearing Organization General Provisions and
Core Principles, 76 FR at 69379.
\14\ Id.
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B. The Divisions' No-Action Position
On July 10, 2019, the Division of Swap Dealer and Intermediary
Oversight (DSIO) (now Market Participants Division (MPD)) and the
Division of Clearing and Risk (DCR) published CFTC Letter No. 19-17,
which, among other things, provides guidance with respect to the
processing of margin withdrawals under regulation Sec.
39.13(g)(8)(iii) and announced a conditional and time-limited no-action
position for certain such withdrawals.\15\ The advisory followed
discussions with and written representations from the Asset Management
Group of the Securities Industry and Financial Markets Association
(SIFMA-AMG), the Chicago Mercantile Exchange (CME), the Futures
Industry Association (FIA), the JAC, and several FCMs, regarding
practices among FCMs and their customers related to the handling of
separate accounts of the same customer.\16\ CFTC Letter No. 19-17 used
the term ``beneficial owner'' synonymously with the term ``customer,''
as ``beneficial owner'' was, in this context, commonly used to refer to
the customer that is financially responsible for an account.
Additionally, as discussed further below, in the customer relationship
context, FCMs often deal directly with a commodity trading advisor
acting as an agent of the customer rather than the customer itself. For
the avoidance of confusion (e.g., with regard to the terms ``owner'' or
``ownership,'' as those terms are used in Forms 40 and 102, or parts
17-20, or with regard to the term ``beneficial owner,'' as that term
may be used by other agencies), this proposed rulemaking uses only the
term ``customer.''
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\15\ CFTC Letter No. 19-17, July 10, 2019, available at https://www.cftc.gov/csl/19-17/download as extended by CFTC Letter No. 20-
28, Sept. 15, 2020, available at https://www.cftc.gov/csl/20-28/download; CFTC Letter No. 21-29, Dec. 21, 2021, available at https://www.cftc.gov/csl/21-29/download; and CFTC Letter No. 22-11, Sept.
15, 2022, available at https://www.cftc.gov/csl/22-11/download.
\16\ SIFMA-AMG letter dated June 7, 2019 to Brian A. Bussey and
Matthew B. Kulkin (SIFMA-AMG Letter); CME letter dated June 14, 2019
to Brian A. Bussey and Matthew B. Kulkin (CME Letter); and FIA
letter dated June 26, 2019 to Brian A. Bussey and Matthew B. Kulkin
(First FIA Letter).
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The written representations preceding the issuance of CFTC Letter
No. 19-17 included letters filed separately by SIFMA-AMG, CME, and FIA
(collectively, the ``Industry Letters'').\17\ Citing regulation Sec.
39.13(g)(8)(iii)'s requirements related to the withdrawal of customer
initial margin, and JAC Regulatory Alert #19-02 reminding FCMs of those
requirements,\18\ SIFMA-AMG and FIA explained that provisions in
certain FCM customer agreements provide that certain accounts carried
by the FCM that have the same customer are treated as accounts for
different legal entities (i.e., ``separate accounts'').\19\
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\17\ The Commission notes that while CME disagreed with certain
aspects of FIA's letter that fall beyond the scope of this
rulemaking, CME's letter noted that CME was ``amenable to the
Commission amending Rule 39.13(g)(8)(iii) to allow a DCO to permit
a[n] FCM to release excess funds from a customer's separate account
notwithstanding an outstanding margin call in another account of the
same customer provided that certain specified risk-mitigating
conditions . . . are satisfied.'' CME Letter.
\18\ JAC, Regulatory Alert #19-02, May 14, 2019, available at
https://www.jacfutures.com/jac/jacupdates/2019/jac1902.pdf.
\19\ SIFMA-AMG Letter; First FIA Letter.
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As FIA explained, there are a variety of reasons why a customer may
want separate treatment for its accounts under such an agreement.\20\
For instance, an institutional customer, such as an investment or
pension fund, may allocate assets to investment managers under
investment management agreements that require each investment manager
to invest a specified portion of the customer's assets under management
in accordance with an agreed trading strategy, independent of the
trading that may be undertaken for the customer by the same or other
investment managers acting on behalf of other accounts of the
customer.\21\ In such a situation, an investment manager may, in order
to implement their trading strategy effectively, want assurance that
the portion of funds they have been given to manage is entirely
available to them, and will not be affected by the activities of other
investment managers who manage other portions of the customer's assets.
Additionally, a commercial enterprise may establish separate agreements
to leverage specific broker expertise on products or to diversify risk
management strategies.\22\ In such cases, each separate account is
subject to a separate customer agreement, which the FCM negotiates
directly with, in many cases, the customer's agent, which often will be
an investment manager.\23\
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\20\ First FIA Letter.
\21\ See id.
\22\ Id.
\23\ Cf. id.
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SIFMA-AMG and FIA asserted that, subject to appropriate FCM
internal controls and procedures, separate accounts should be treated
as separate legal entities for purposes of regulation Sec.
39.13(g)(8)(iii); i.e., separate accounts should not be combined when
determining an account's margin funds available for disbursement.\24\
SIFMA-AMG and FIA maintained that such separate account treatment
should not be expected to expose an FCM to any greater regulatory or
financial risk, and asserted that an FCM's internal controls and
procedures could be designed to assure that the FCM does not undertake
any additional risk as to the separate account.\25\ The Industry
Letters included a number of examples of such controls and
procedures.\26\
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\24\ SIFMA-AMG Letter; First FIA Letter.
\25\ SIFMA-AMG Letter; First FIA Letter.
\26\ SIFMA-AMG Letter; First FIA Letter; CME Letter.
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In its letter, SIFMA-AMG suggested that it would be possible to
allow for
[[Page 22937]]
separate account treatment without undermining the risk mitigation and
customer protection goals of regulation Sec. 39.13(g)(8)(iii).\27\
SIFMA-AMG recognized that there may be some instances, such as a
customer default, in which separate account treatment would no longer
be appropriate.\28\ SIFMA-AMG stated that an FCM could agree to first
satisfy any amounts owed from agreed assets related to a separate
account, and continue to release funds until the FCM provided the
separate account with a notice of an event of default under the
applicable clearing account agreement, and determined that it is no
longer prudent to continue to separately margin the separate accounts,
provided that such actions are consistent with the FCM's written
internal controls and procedures.\29\ SIFMA-AMG further stated that, in
such instance, the FCM would retain the ability to ultimately look to
funds in other accounts of the customer, including accounts under
different control, and the right to call the customer for funds.\30\
CME similarly asserted that disbursements on a separate account basis
should not be permitted in certain circumstances, such as financial
distress, that fall outside the ``ordinary course of business.'' \31\
While CME asserted that the plain language of regulation Sec.
39.13(g)(8)(iii) unambiguously forbids disbursements on a separate
account basis, CME noted that it would be amenable to the Commission
amending the regulation to permit such disbursements, subject to
certain such risk-mitigating conditions.\32\
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\27\ SIFMA-AMG Letter.
\28\ Id.
\29\ Id.
\30\ Id.
\31\ CME Letter.
\32\ Id.
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SIFMA-AMG and FIA requested that DCR confirm that it would not
recommend that the Commission initiate an enforcement action against a
DCO that permits its clearing FCMs to treat certain separate accounts
as accounts of separate entities for purposes of regulation Sec.
39.13(g)(8)(iii),\33\ and confirm that a clearing FCM may release
excess funds from a separate customer account notwithstanding an
outstanding margin call in another account of the same customer.\34\
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\33\ FIA specifically noted that such a no-action position could
be conditioned on the FCM maintaining certain internal controls and
procedures.
\34\ SIFMA-AMG Letter; First FIA Letter; see also CME Letter.
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In CFTC Letter No. 19-17, DCR stated that, in the context of
separate accounts, the risk management goals of regulation Sec.
39.13(g)(8)(iii) may effectively be addressed if a clearing FCM
carrying a customer with separate accounts meets certain conditions,
which were derived from the Industry Letters and specified in CFTC
Letter No. 19-17.\35\ DCR stated that it would not recommend that the
Commission take enforcement action against a DCO if the DCO permits its
clearing FCMs to treat certain separate accounts as accounts of
separate entities for purposes of regulation Sec. 39.13(g)(8)(iii)
subject to these conditions.\36\ The no-action position extended until
June 30, 2021, in order to provide DCR with time to recommend, and the
Commission with time to determine whether to conduct and, if so,
conduct, a rulemaking to implement a permanent solution.\37\ CFTC
Letter No. 20-28, published on September 15, 2020, extended the no-
action position until December 31, 2021 due to challenges presented by
the COVID-19 pandemic.\38\ CFTC Letter No. 20-28 stated that if the
process to consider codifying the no-action position provided for by
CFTC Letter No. 19-17 was not completed by that date, DSIO and DCR
would consider further extending the no-action position.\39\ MPD and
DCR published CFTC Letter No. 21-29, further extending the no-action
position until September 30, 2022.\40\ On September 15, 2022, MPD and
DCR published CFTC Letter No. 22-11, which further extended the no-
action position until the earlier of September 30, 2023 or the
effective date of any final Commission action relating to regulation
Sec. 39.13(g).\41\ As with CFTC Letter No. 21-29, this latest
extension was issued in order to provide additional time for the
Commission to consider a rulemaking.
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\35\ CFTC Letter No. 19-17.
\36\ Id.
\37\ Id.
\38\ CFTC Letter No. 20-28.
\39\ Id.
\40\ CFTC Letter No. 21-29.
\41\ CFTC Letter No. 22-11.
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II. Proposed Amendments to Regulation Sec. 39.13
The Commission preliminarily believes that proposed regulation
Sec. 39.13(j) relating to separate account treatment in connection
with the withdrawal of customer initial margin is consistent with the
customer protection and risk management goals of regulation Sec.
39.13(g)(8)(iii). As further described below, the Commission
preliminarily believes that preventing the under-margining of customer
accounts and mitigating the risk of a clearing member default (and the
potential for systemic risk), is effectively addressed by the standards
set forth in the proposed regulation where the clearing FCM treats the
separate accounts of a customer as accounts of separate entities
consistent with the conditions outlined in proposed regulation Sec.
39.13(j).
A. Overview of Proposed Regulation Sec. 39.13(j)
The Commission proposes to amend regulation Sec. 39.13 to add new
paragraph (j) allowing a DCO to permit a clearing FCM to treat the
separate accounts of customers as accounts of separate entities for
purposes of regulation Sec. 39.13(g)(8)(iii), if such clearing
member's written internal controls and procedures permit it to do so,
and the DCO requires its clearing members to comply with conditions
specified in proposed regulation Sec. 39.13(j)(1) through (14), which
are substantially similar to the conditions specified in CFTC Letter
No. 19-17.\42\ Those conditions are in turn designed to ensure that
clearing FCMs (i) carry out such separate account treatment in a
consistent and documented manner; (ii) monitor customer accounts on a
separate and combined basis; (iii) identify and act upon instances of
financial or operational distress that necessitate a cessation of
separate account treatment; (iv) provide appropriate disclosures to
customers regarding separate account treatment; and (v) apprise their
DSROs when they apply separate account treatment or an event has
occurred that would necessitate cessation of separate account
treatment. The Commission believes that separate account treatment,
subject to these conditions, is consistent with Core Principle D. In
addition, the Commission notes that nothing in this proposed
rulemaking, or in proposed regulation Sec. 39.13(j), would preclude a
DCO from establishing or enforcing requirements for clearing FCMs that
are additional to or more stringent than those set forth in the
proposed regulation. Rather, proposed regulation Sec. 39.13(j) is
intended to establish a minimum set of risk-mitigating
[[Page 22938]]
conditions that DCOs that wish to permit separate account treatment
must require of their clearing FCMs that choose to engage in such
treatment.
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\42\ CFTC Letter No. 19-17 conditioned the no-action position
with regard to the treatment of separate accounts on 16 enumerated
conditions. Proposed regulation Sec. 39.13(j) incorporates
conditions 15 and 16 in CFTC Letter No. 19-17, regarding,
respectively, (i) the clearing member's notification to its DSRO and
DCOs of which it is a clearing member of the application of separate
account treatment; and (ii) the clearing member's maintenance of a
list of all separate accounts, as proposed regulation Sec.
39.13(j)(14)(ii) and (iii), respectively.
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Proposed regulation Sec. 39.13(j) is intended to provide an
alternative means of achieving the risk management goals served by
regulation Sec. 39.13(g)(8)(iii). As a result, proposed regulation
Sec. 39.13(j) would not prohibit the application of portfolio
margining or cross-margining treatment within a particular separate
account. The Commission notes that because a number of clearing FCMs
already comply with the conditions set forth in CFTC Letter No. 19-17,
such clearing FCMs already comply in significant part with the
requirements of proposed regulation Sec. 39.13(j), which, if adopted,
DCOs choosing to permit separate account treatment would be required to
apply to such clearing FCMs.
Regulation Sec. 39.13(g)(8)(iii) applies to margin in a customer's
account with respect to all products and swap portfolios held in such
customer's account which are cleared by the derivatives clearing
organization (emphasis added). Accordingly, the requirements of
regulation Sec. 39.13(g)(8)(iii) apply to a DCO \43\ with respect to
the clearing of (a) futures, (b) swaps, or (c) foreign futures or
foreign options subject to Commission regulation Sec. 30.7, to the
extent the DCO clears those specific products in a customer's account.
Additionally, because the requirements of proposed regulation Sec.
39.13(j) are an alternative means to achieve the risk management goals
of regulation Sec. 39.13(g)(8)(iii), the requirements of proposed
regulation Sec. 39.13(j) would apply to a DCO with respect to the
clearing of futures, swaps, or foreign futures or foreign options
subject to regulation Sec. 30.7, to the extent the DCO permits
separate account treatment and clears those specific types of products
in a customer account subject to separate account treatment.
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\43\ This discussion does not apply to a DCO regulated pursuant
to subpart D of part 39.
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For example, if a DCO that permits separate account treatment
clears only futures contracts (or only futures and swaps), regulation
Sec. 39.13(g)(8)(iii) (and the alternative path in proposed regulation
Sec. 39.13(j)) would apply to the DCO only with respect to the
clearing by its members of such futures contracts (or, respectively,
such futures and swaps). Similarly, if a DCO clears foreign futures or
foreign options subject to regulation Sec. 30.7, regulation Sec.
39.13(g)(8)(iii) (and the alternative path in proposed regulation Sec.
39.13(j)) would apply to that DCO with respect to the clearing by its
member of such 30.7 contracts.
As a practical matter, an FCM's futures account for a customer
includes all futures products that the FCM clears for that customer,
and the initial margin requirement for that account would be the sum of
the initial margin the FCM charges the customer for each of those
contracts (including, e.g., effects of portfolio margining), regardless
of the DCO at which such contracts are cleared. The margin value
available--``net liquidating value plus the margin deposits
remaining''--is calculated across the account. Thus, by way of example,
a customer whose account contains products cleared by an FCM as a
clearing member at two DCOs could generally not be under-margined with
respect to products cleared at only one of the two DCOs. Rather, since
the margin value available collateralizes the products cleared at both
DCOs, the customer would necessarily be under-margined with respect to
products cleared at both DCOs, or at neither DCO.\44\
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\44\ There may be slight complications if, e.g., for certain of
the collateral posted by the customer, one DCO requires the FCM to
apply higher haircuts than the other DCO.
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The same applies, mutatis mutandis, to a customer's swap portfolios
cleared through the FCM at multiple DCOs. It would also apply, mutatis
mutandis, to a customer's foreign futures or foreign options subject to
regulation Sec. 30.7 cleared through the FCM at multiple
clearinghouses, with a slight modification: If all of those foreign
futures or foreign options are cleared at a clearinghouse that is not
registered with the Commission as a DCO (or is so registered, but only
subject to subpart D of part 39), then there would be no DCO subject to
Sec. 39.13(g)(8)(iii) that would be required to apply that regulation
to the FCM. However, if any of those foreign futures or foreign options
are cleared by the FCM as a clearing member of a DCO registered with
the Commission (other than one registered subject to subpart D), then
that DCO would be required to apply Sec. 39.13(g)(8)(iii), or, if
adopted, the alternative in proposed Sec. 39.13(j), and (because
margin requirements apply across the customer's account, here, a Sec.
30.7 account) the margin requirement that would need to be met would
take into account all such foreign futures and foreign options,
regardless of the clearinghouse at which they ultimately are cleared.
Clearing FCMs are additionally bound by the rules of DCOs and/or
self-regulatory organizations (SROs), and such entities have taken the
position that such rules apply to a broader set of circumstances than
Sec. 39.13(g)(8)(iii). For example, the JAC Margins Handbook, the
provisions of which SROs may apply directly to FCMs, contains
provisions that regulation Sec. 39.13(g)(8)(iii) was based on.\45\ The
JAC Margins Handbook provides that ``[a]ll identically owned accounts
must be combined for purposes of determining the amount of funds
available for disbursement within the account classifications of
customer segregated, customer secured, or nonsegregated.'' \46\ The JAC
Margins Handbook further provides that an FCM may not make a
disbursement to a customer if the value of such customer's combined
accounts, less required margin on open positions in such accounts, is
zero or negative.\47\ Therefore the JAC Margins Handbook effectively
calls for each FCM to ensure that its customers, including customers
holding accounts subject to regulation Sec. 30.7 (30.7 customers), do
not withdraw funds from their accounts with such FCM unless the net
liquidating value plus the margin deposits remaining in the applicable
customer's account after the withdrawal is sufficient to meet the
customer's margin requirements with respect to the products or
portfolios in the customer's account.
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\45\ See supra n. 11 and accompanying text.
\46\ JAC Margins Handbook at 10-2, available at https://www.jacfutures.com/jac/MarginHandBookWord.aspx.
\47\ Id.
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The JAC issued Regulatory Alert 19-06 to effectively incorporate
the no-action position provided by CFTC Letter 19-17 to the provisions
of the JAC Margins Handbook as it relates to 30.7 customer
accounts.\48\ Specifically, Regulatory Alert 19-06 provides that,
notwithstanding the restrictions contained in the JAC Margins Handbook,
FCMs may apply CFTC Letter No. 19-17, including the appropriate
conditions, to the separate accounts of 30.7 customers in determining
margin funds available for disbursement.\49\
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\48\ JAC, Regulatory Alert #19-06, Aug. 28, 2019, available at
https://www.jacfutures.com/jac/jacupdates/2019/jac1906.pdf.
\49\ Id. at 2. The JAC subsequently issued Regulatory Alert 20-
02 extending the relief for withdrawals from separate 30.7 customer
accounts under the JAC Margins Handbook to the earlier of the
termination of the no-action position provided by CFTC Staff Letters
or to the adoption of a final regulation addressing the withdrawal
of funds from separate 30.7 customer accounts. JAC, Regulatory Alert
#20-02, Sept. 23, 2020, available at https://www.jacfutures.com/jacupdates/2020/jac2002.pdf.
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[[Page 22939]]
Similarly, CME, in Financial and Regulatory Bulletin 19-02,\50\
noted that the foregoing provisions of the JAC Margins Handbook apply
to CME, CBOT, NYMEX, and COMEX Rule 930.F. and CME Rule 8G930.F.
(Release of Excess Performance Bond), and that ``CME Clearing is
permitting its FCM clearing members to treat separate accounts of the
same beneficial owner as separate accounts under Rule 930.F. for
purposes of determining performance bond funds available for
disbursement under the conditions of the CFTC Letter.''
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\50\ Available at https://www.cmegroup.com/notices/clearing/2019/07/FRB-19-02.html.
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Request for Comment
Question 1: The Commission requests comment regarding whether it
should consider any conditions additional to those contained in
proposed regulation Sec. 39.13(j) below, or modify or remove any of
the conditions proposed herein.
Question 2: The Commission requests comment regarding whether any
further action is necessary and appropriate to apply the requirements
DCOs are required to apply to their clearing members regarding customer
withdrawal of initial margin under regulation Sec. 39.13(g)(8)(iii)
and proposed regulation Sec. 39.13(j), directly to non-clearing FCMs
or to FCMs that carry regulation Sec. 30.7 customer accounts that are
not cleared at a DCO that is registered with the Commission (or are so
registered, but only subject to subpart D of part 39) . If so, who
(e.g., SROs or the Commission) should take such action, and what should
that action be? Would such actions risk causing actual or potential
conflicts with the rules or practices of foreign clearing organizations
or foreign contract markets? If so, please provide references.
B. Proposed Regulation Sec. 39.13(j)(1)
Proposed regulation Sec. 39.13(j)(1)(i) defines ``separate
account'' as referring to any one of multiple accounts of the same
customer that are carried by the same FCM that is a clearing member of
a DCO. Proposed regulation Sec. 39.13(j)(1) also sets forth the first
condition: the clearing member may only permit disbursements on a
separate account basis during the ``ordinary course of business,'' as
that term is defined therein. Proposed regulation Sec. 39.13(j)(1)(ii)
provides that, for purposes of proposed regulation Sec. 39.13(j), the
term ``ordinary course of business'' refers to the standard day-to-day
operation of the clearing member's business relationship with its
customer, a condition where there are no unusual circumstances that
might indicate either an increased level of risk that the customer may
fail promptly to perform its financial obligations to the clearing FCM,
or decreased financial resilience on the part of the clearing FCM.
Consistent with the conditions set forth in CFTC Letter No. 19-17,
proposed regulation Sec. 39.13(j)(1)(ii)(A) through (I) specifies
events that are inconsistent with the ordinary course of business. The
occurrence of such an event would require the clearing member to cease
permitting disbursements on a separate account basis as to one or more
specific customers (in the case of (A) through (F) below), or as to all
customer accounts receiving separate account treatment (in the case of
(G) through (I) below).\51\ Such events are as follows:
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\51\ Whether the clearing member would be required to cease
permitting disbursements on a separate account basis as to one or
more specific customers or as to all customer accounts receiving
separate account treatment depends on whether the relevant non-
ordinary course of business event occurs with respect to one or more
specific customers or with respect to the clearing member itself.
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(A) The customer, including any separate account of the
customer, fails to deposit or maintain initial or maintenance margin or
make payment of variation margin or option premium as specified in
proposed regulation Sec. 39.13(j)(4).
(B) The occurrence and declaration by the clearing member
of an event of default as defined in the account documentation executed
between the clearing member and the customer.
(C) A good faith determination by the clearing member's
chief compliance officer, senior risk managers, or other senior
management, following the clearing member's own internal escalation
procedures, that the customer is in financial distress, or there is
significant and bona fide risk that the customer will be unable
promptly to perform its financial obligations to the clearing member,
whether due to operational reasons or otherwise.
(D) The insolvency or bankruptcy of the customer or a
parent company of the customer.
(E) The clearing member receives notification that a board
of trade, a DCO, an SRO (as defined in Commission regulation Sec. 1.3
or section 3(a)(26) of the Securities Exchange Act of 1934), the
Commission, or another regulator with jurisdiction over the customer,
has initiated an action with respect to the customer based on an
allegation that the customer is in financial distress.
(F) The clearing member is directed to cease permitting
disbursements on a separate account basis, with respect to one or more
customers, by a board of trade, a DCO, an SRO, the Commission, or
another regulator with jurisdiction over the clearing member, pursuant
to, as applicable, board of trade or DCO rules, government regulations,
or law.
(G) The clearing member is notified by a board of trade, a
DCO, an SRO, the Commission, or another regulator with jurisdiction
over the clearing member,\52\ that the board of trade, the DCO, the
SRO, the Commission, or other regulator, as applicable, believes the
clearing member is in financial or other distress.
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\52\ E.g., the Securities and Exchange Commission, or a foreign
regulator.
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(H) The clearing member is under financial or other
distress, as determined in good faith by its chief compliance officer,
one of its senior risk managers, or other senior manager.
(I) The bankruptcy of the clearing member or a parent
company of the clearing member.
Proposed regulation Sec. 39.13(j)(1)(iii) provides that the
clearing member must communicate to its DSRO and any DCO of which it is
a clearing member the occurrence of any one of the events enumerated in
proposed regulation Sec. 39.13(j)(1)(ii)(A) through (I). The clearing
member would need to make such communication promptly in writing, and
in any case no later than the next business day following the date on
which the clearing member identifies or is informed that such event has
occurred.
Additionally, proposed regulation Sec. 39.13(j)(1)(iv) provides
that a clearing member that has ceased permitting disbursements on a
separate account basis as a result of the occurrence of a non-ordinary
course of business event may resume permitting such disbursements if it
reasonably believes, based on new information, that the circumstances
leading it to cease separate account treatment have been cured.\53\ The
clearing member would be required to provide in writing to its DSRO and
any DCO of which it is a clearing member a notification that it will
resume separate account treatment, and the factual basis and rationale
for its conclusion that the circumstances leading it to originally
cease separate account treatment have been cured.
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\53\ If the circumstances in question were an action or
direction by one of the entities described in paragraphs (E) through
(G), then the cure of those circumstances would require the
withdrawal or other appropriate termination of such action or
direction.
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In requesting a no-action position, SIFMA-AMG stated that separate
account treatment should not be
[[Page 22940]]
expected to expose an FCM to any greater regulatory or financial risk,
and that, subject to appropriate controls and procedures, an FCM could
agree to release funds from separate accounts until the FCM provides
the separate account with a notice of default and determines it is no
longer prudent to continue separate account treatment.\54\ That
separate account treatment should be discontinued under certain
circumstances is further reflected in CME's recommendation that
separate account treatment be permitted only during the ordinary course
of business. As CME explained, FCMs should maintain the flexibility to
determine that either the customer or the FCM itself is in distress and
pause disbursements until the customer's other account can demonstrably
meet the call to deposit funds.\55\ Similarly, as CME noted, an FCM
should not be purposely releasing funds to a customer when the
customer's overall account is in deficit, as doing so may create a
shortfall in segregated, secured or cleared swaps accounts in the event
the FCM becomes insolvent.\56\ However, the Commission acknowledges
that in some instances, an FCM or customer may exit a state of
financial, operational, or other distress, such that resumption of
separate account treatment would be appropriate. By explicitly
providing clearing members with an avenue to resume separate account
treatment consistent with the resumption of the ordinary course of
business, while requiring disclosure of the basis for doing so, the
Commission seeks to incentivize transparency between clearing members
and their DSROs and DCOs with respect to (a) conditions at clearing
members or customers that could indicate operational or financial
distress, and (b) more generally, the risk management program at the
clearing member.
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\54\ SIFMA-AMG Letter.
\55\ CME Letter.
\56\ Id.
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Proposed regulation Sec. 39.13(j)(1) is designed to ensure that
disbursements are permitted on a separate account basis only during the
sound and routine operation of the clearing member's business
relationship with its customer. Certain events signaling financial
distress of the clearing member or customer are inconsistent with the
normal operation of the business relationship between the clearing
member and its customer. The Commission believes that, when such events
occur--and during the duration of their occurrence--continuing to allow
DCOs to permit separate account treatment would be contrary to the
goals of protecting customer funds and mitigating systemic risk.
Request for Comment
Question 3: The Commission requests comment regarding whether it
should (i) consider any events beyond those enumerated in proposed
regulation Sec. 39.13(j)(1)(ii)(A) through (I) as inconsistent with
the ordinary course of business for purposes of the application of
proposed regulation Sec. 39.13(j); (ii) change the specification of
any of the events in proposed regulation Sec. 39.13(j)(1)(ii)(A)
through (I); or (iii) delete any of those events (because the proposed
event is not inconsistent with the ordinary course of business).
C. Proposed Regulation Sec. 39.13(j)(2)
Proposed regulation Sec. 39.13(j)(2) would require that the
clearing member obtain from the customer or, as applicable, the manager
of a separate account, information sufficient to (i) assess the value
of the assets dedicated to the separate account and (ii) identify the
direct or indirect parent company of the customer, as applicable, if
the customer has a direct or indirect parent company.\57\ Proposed
regulation Sec. 39.13(j)(2)(i) is intended to ensure that clearing
members have visibility with respect to customers' financial resources
appropriate to ensure that a customer's separate account is adequately
margined, and to identify when a customer's financial circumstances
would necessitate the cessation of separate account treatment. Proposed
regulation Sec. 39.13(j)(2)(i) contemplates that, in certain
instances, an investment manager may manage one or more accounts under
power of attorney on a customer's behalf; in such cases, a clearing
member may obtain the requisite financial information from the
investment manager. Proposed regulation Sec. 39.13(j)(2)(ii) is
intended to ensure that clearing members have sufficient information to
identify the direct or indirect parent company of a customer so that
they may identify when a parent company of a customer has become
insolvent, for purposes of proposed regulation Sec.
39.13(j)(1)(ii)(D).
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\57\ The Commission understands that, in certain cases, such as
when a customer is a fund, the customer may not have a parent
company. In such cases, the requirement to obtain information
sufficient to identify the direct or indirect parent company would
not apply.
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Request for Comment
Question 4: The Commission requests comment on whether proposed
regulation Sec. 39.13(j)(2) should require a clearing member to obtain
from a customer or, as applicable, the manager of a separate account,
any specific information or documentation relevant to determining the
value of assets dedicated to a separate account, or, more broadly, any
information relevant to determining the value of assets available to
meet the obligations of the customer's accounts on a combined basis.
The Commission further requests comment on whether it should prescribe
a minimum requirement of how often such information should be obtained
and/or updated.
D. Proposed Regulation Sec. 39.13(j)(3)
Proposed regulation Sec. 39.13(j)(3) provides that the clearing
member's internal risk management policies and procedures must provide
for stress testing and credit limits for customers with separate
accounts. Furthermore, proposed regulation Sec. 39.13(j)(3) provides
that stress testing must be performed, and credit limits must be
applied, both on an individual separate account and on a combined
account basis. By conducting stress testing on both an individual
separate account and on a combined account basis, a clearing member can
determine the potential for significant loss in the event of extreme
market conditions, and the ability of traders and clearing members to
absorb those losses, with respect to each individual account of a
customer, as well as with respect to all of the customer's
accounts.\58\ Additionally, by applying credit limits on both an
individual separate account basis and on a combined account basis, a
clearing member can be in a better position to manage the financial
risks they incur as a result of clearing trades both for a customer's
separate account and for all of the customer's accounts.\59\ By better
managing the financial risks posed by customers and understanding the
extent of customers' risk exposures, clearing members can better
mitigate the risk that customers do not maintain sufficient funds to
meet initial margin requirements, and anticipate and mitigate the risk
of the occurrence of
[[Page 22941]]
certain of the events detailed in proposed regulation Sec.
39.13(j)(1)(ii)(A)-(I), such as a customer's failure to make margin
payments as specified by proposed regulation Sec. 39.13(j)(4).
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\58\ See 17 CFR 1.73(a)(4) (requiring each FCM that is a
clearing member of a DCO to conduct stress tests under extreme but
plausible conditions of all positions in the proprietary account and
in each customer account that could pose material risk to the FCM at
least once per week); see also Customer Clearing Documentation,
Timing of Acceptance for Clearing, and Clearing Member Risk
Management, 77 FR 217278, 21289 (Apr. 9, 2012).
\59\ See 17 CFR 1.73(a)(1) (requiring clearing FCMs to establish
risk-based limits in the proprietary account, and in each customer
account, based on position size, order size, margin requirements, or
similar factors); see also Customer Clearing Documentation, Timing
of Acceptance for Clearing, and Clearing Member Risk Management, 77
FR at 21287.
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E. Proposed Regulation Sec. 39.13(j)(4)
Proposed regulation Sec. 39.13(j)(4) provides that each separate
account must be on a one business day margin call, subject to certain
requirements that apply solely for purposes of that proposed
regulation. Providing for a ``one business day margin call,'' as
defined in this paragraph, ensures that margin shortfalls are timely
corrected, and a customer's inability to meet a margin call is timely
identified. However, in certain circumstances, it may be impracticable
for payments to be received on a same-day basis due to the mechanics of
international payment systems. In proposing requirements to define
timely payment of margin for purposes of the standard set forth in
proposed regulation Sec. 39.13(j)(4), the Commission's goal is to
establish requirements that reflect industry best practices among DCOs,
clearing members, and customers.
Specifically, the Commission understands that, while margin calls
made in the morning in the U.S. Eastern Time Zone are typically capable
of being met on a same-day basis when margin is paid in United States
dollars (USD) and Canadian dollars (CAD), the operation of time zones
and banking conventions in other jurisdictions may necessitate
additional time when margin is paid in other currencies. For example,
the Commission understands that margin paid in Japanese yen (JPY) is
typically received two business days after a margin call is issued, and
margin paid in British pounds (GBP), euros (EUR), and other non-USD/
CAD/JPY currencies is typically received one business day after a
margin call is issued.
Proposed regulation Sec. 39.13(j)(4)(i) provides that, subject to
certain exceptions, discussed below, a ``one business day margin call''
(as that term used in proposed regulation Sec. 39.13(j)(4)), issued by
11:00 a.m. Eastern Time (ET) on a United States business day,\60\ must
be met by the applicable customer by the close of the Fedwire Funds
Service \61\ on the day on which it is issued. A margin call issued
after 11:00 a.m. ET on a United States business day, or on a Saturday,
Sunday, or a Federal holiday, would be considered to have been issued
before 11:00 a.m. ET on the next day that is a United States business
day. The Commission proposes that a clearing member be prohibited from
contractually agreeing to delay calling for margin until after 11:00
a.m. ET on any given United States business day, and from engaging in
practices that are designed to circumvent proposed regulation Sec.
39.13(j)(4) by causing such delay.\62\ Additionally, the Commission
proposes, in proposed regulation Sec. 39.13(j)(4)(vi), that a clearing
member would not be in compliance with the requirements of proposed
regulation Sec. 39.13(j)(4) if it contractually agrees to provide for
a period of time to meet margin calls that extends beyond the time
periods specified in proposed regulation Sec. 39.13(j)(4)(i)-(v) \63\
or engages in practices designed to circumvent the requirements of
proposed regulation Sec. 39.13(j)(4).
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\60\ The definition of ``United States business day'' is
discussed below.
\61\ The Fedwire Funds Service is an electronic funds transfer
service commonly used for settlement and clearing arrangements. The
service currently closes at 7:00 p.m. ET. For purposes of the
Fedwire Funds Service, Federal Reserve Banks observe as holidays all
Saturdays, all Sundays, and the holidays listed on the Federal
Reserve Banks' Holiday Schedules. See The Federal Reserve,
Fedwire[supreg] Funds Service and National Settlement Service
Operating Hours and FedPayments[supreg] Manager Hours of
Availability, available at https://www.frbservices.org/resources/financial-services/wires/operating-hours.html. Because the Fedwire
Funds Service hours of operations may be subject to change, the
Commission has determined to tie the timeframe to fulfill the one
business day margin call requirements of proposed regulation Sec.
39.13(j)(4) to the Fedwire Funds Service's closing rather than an
absolute time.
\62\ The clearing member would not be prohibited from making a
margin call after 11:00 a.m. ET if it deemed it appropriate to do
so, it simply would be prohibited from contractually agreeing to
delay making the margin call until after that time (which would have
the effect of delaying the date on which payment is due).
\63\ For example, if a clearing FCM and a customer contract for
a grace or cure period that would operate to make margin due and
payable later than the deadlines described herein, including a case
where the FCM would not have the discretion to liquidate the
customer's positions and/or collateral where margin is not paid by
such time, such an agreement would be inconsistent with the
conditions under which such clearing FCM may engage in separate
account treatment.
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The Commission proposes this provision in order to make clear that
it is establishing a maximum period of time in which a margin call must
be met for purposes of this regulation, rather than establishing a
minimum time that must be allowed. Proposed regulation Sec.
39.13(j)(4) would not preclude a clearing member from having customer
agreements that provide for more stringent margining requirements, or
applying more stringent margining requirements in appropriate
circumstances.\64\ Moreover, the statement that these requirements
apply solely for purposes of this paragraph (j)(4) means that such
requirements are not intended to apply to any other provision; e.g.,
they are not intended to define when an account is under-margined for
purposes of Commission regulation Sec. 1.17.
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\64\ For example, a clearing member (or other contractual)
requirement that a margin call issued by 12:00 p.m. ET be met by the
applicable customer by 6:00 p.m. ET on the same day would not be
inconsistent with proposed regulation Sec. 39.13(j)(4).
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Conversely, the Commission does not propose to prohibit contractual
arrangements inconsistent with proposed regulation Sec. 39.13(j)(4).
However, the clearing member would not be permitted to engage in
separate account treatment under such arrangements.
In light of challenges to same-day settlement posed by margining in
certain currencies, as described above, and in recognition of the
particular banking conventions around payments in JPY, proposed
regulation Sec. 39.13(j)(4)(ii) provides that payment of margin in JPY
shall be considered in compliance with the requirements of proposed
regulation Sec. 39.13(j)(4) if received by the applicable clearing
member by 12:00 p.m. ET on the second United States business day after
the margin call is issued. Furthermore, proposed regulation Sec.
39.13(j)(4)(iii) provides that payment of margin in fiat currencies
other than USD, CAD, or JPY shall be considered in compliance with the
requirements of proposed regulation Sec. 39.13(j)(4) if received by
the applicable clearing member by 12:00 p.m. ET on the United States
business day after the day the margin call is issued.\65\ The
Commission proposes to define ``United States business day'' in
proposed regulation Sec. 39.13(j)(4)(vii) as meaning weekdays, not
including Federal holidays as established by 5 U.S.C. 6103. The term
``United States business day'' is intended to encompass days on which
banks and custodians are open in the United States to facilitate
payment
[[Page 22942]]
of margin for clearing members and their customers.\66\
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\65\ The Commission notes that while it proposes to require that
a one business day margin call be met by the applicable customer by
the close of the Fedwire Funds Service on the day it is issued (as
long as it is issued by 11:00 a.m. ET on a United States business
day) where margin is paid in USD or CAD, it proposes to require that
a one business day margin call be received by the applicable
clearing member by 12:00 p.m. ET on the next United States business
day after the margin call is issued, where the payment of margin is
in fiat currencies other than USD, CAD, or JPY, and received by the
applicable clearing member by 12:00 p.m. ET on the second United
States business day after the margin call is issued, where the
payment of margin is in JPY. As discussed above, these distinct
requirements are intended to account for the lead time required when
fund transfers are made in non-USD and CAD currencies, and to ensure
that clearing members are not unduly delayed in collecting margin.
\66\ As used in proposed regulation Sec. 39.13(j)(4), the term
``United States business day'' is specifically intended to be
distinct from the intraday period encompassed by the definition of
business day in regulation Sec. 39.2.
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The occurrence of a foreign holiday during which banks are closed
may also create difficulties in payment of margin in a fiat currency
other than USD. Therefore, the Commission proposes regulation Sec.
39.13(j)(4)(iv), which provides that the relevant deadline for payments
of margin in fiat currencies other than USD may be extended by up to
one United States business day and still considered in compliance with
the requirements of proposed regulation Sec. 39.13(j)(4) if payment is
delayed due to a banking holiday in the jurisdiction of issue of the
currency in which margin is paid. Where margin is paid in EUR, the
customer or investment manager managing the separate account may
designate one country within the Eurozone with which the customer or
investment manager, as applicable, has the most significant contacts
for purposes of meeting margin calls, whose banking holidays will be
referred to for purposes of compliance with the regulation.\67\
Proposed regulation Sec. 39.13(j)(4)(iv) is designed to provide
clearing FCMs with a level of discretion in how they manage risk by
allowing for limited delays in margin payments due to non-U.S. banking
conventions. Proposed regulation Sec. 39.13(j)(4)(iv) would not,
however, require a clearing FCM to extend the deadline for payments of
margin. Here, the Commission is seeking to allow DCOs to permit their
members to exercise risk management judgment in balancing, within
limits, the risk management challenges caused by extending the time
before a margin call is met with the burdens involved in requiring the
client or investment manager to prefund potential margin calls in
advance of the holiday or to arrange to pay margin more promptly in USD
or another currency not affected by the holiday.
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\67\ With respect to margin payments in EUR, proposed regulation
Sec. 39.13(j)(4)(iv) is intended to prevent customers or investment
managers from leveraging banking holidays in jurisdictions with
which they have no significant commercial nexus, or in a
multiplicity of jurisdictions, to circumvent requirements to pay
margin timely. The Commission requests comment on the practicability
of this standard below.
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The Commission expects that clearing FCM risk management decisions,
including the use of any extension permitted under proposed regulation
Sec. 39.13(j)(4)(iv), will be made in consideration of a client's risk
profile, market conditions, and other relevant factors, evaluated at
the time the risk management decisions are made.\68\
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\68\ This expectation is consistent with the statement of the
directors of DCR and DSIO in issuing CFTC Letter No. 19-17. CFTC,
Statement by the Directors of the Division of Clearing and Risk and
the Division of Swap Dealer and Intermediary Oversight Concerning
the Treatment of Separate Accounts of the Same Beneficial Owner,
Sept. 13, 2019, available at https://www.cftc.gov/PressRoom/SpeechesTestimony/dcrdsiodirectorstatement091319 (``We fully expect
that DCOs and FCMs and their customers will agree that FCMs must
retain, at all times, the discretion to determine that the facts and
circumstances of a particular shortfall are extraordinary and
therefore necessitate accelerating the timeline and relying on the
FCM's protocol for liquidation or for accessing funds in the other
accounts of the beneficial owner held at the FCM.''). See also CFTC
Letter No. 20-28 (stating the same).
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Lastly, in CFTC Letter No. 19-17, staff stated that a failure to
deposit, maintain, or pay margin or option premium due to
administrative errors or operational constraints would not constitute a
failure to timely deposit or maintain initial or variation margin that
would place a customer out of the ordinary course of business. This
provision was intended to prevent a clearing FCM from being excluded
from relying on the no-action position as a result of one-off
exceptions, such as mis-entered data, a flawed software update, or an
unusual and unexpected information technology outage (e.g., an
unanticipated outage of the Fedwire Funds Service). Accordingly, the
Commission proposes regulation Sec. 39.13(j)(4)(v), which provides
that a failure to deposit, maintain, or pay margin or option premium
does not constitute a failure to comply with the requirements of
proposed regulation Sec. 39.13(j)(4) if such failure is due to unusual
administrative error or operational constraints that a customer or
investment manager acting diligently and in good faith could not have
reasonably foreseen.\69\ Proposed regulation Sec. 39.13(j)(4)(v)
provides that, for these purposes, a clearing member's determination
that failure to deposit, maintain, or pay margin or option premium is
due to such administrative error or operational constraint would be
based on the clearing member's reasonable belief in light of
information known to the clearing member, at the time the clearing
member learns of the relevant administrative error or operational
constraint.\70\
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\69\ One would expect that administrative errors at a well-run
clearing FCM or money manager to be unusual and unforeseen. For the
avoidance of doubt, ``unforeseen'' refers to the particular
occurrence of a constraint or error; for example, the fact that some
small percentage of errors may be foreseen does not mean that any
particular error is foreseen (and ``unusual'' means that such
percentage should indeed be small).
\70\ For purposes of clarity and certainty, the Commission
proposes to establish this reasonableness standard for a clearing
member's determination that a failure to timely deposit, maintain,
or pay margin or option premium on the basis of administrative error
or operational constraints. The Commission believes the proposed
standard confers significant discretion upon clearing FCMs to assess
the disposition of their customers while requiring that clearing
FCMs act reasonably and on the basis of current and relevant
information, diligently gathered.
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Request for Comment
Question 5: The Commission requests comment on whether the
regulatory framework set forth in proposed regulation Sec. 39.13(j)(4)
appropriately balances practicability and burden with risk management.
If not, what alternative approach should be taken? How would such an
alternative approach better balance those considerations? In
particular, the Commission requests comment on whether the proposed
standard of timeliness for a one business day margin call set forth in
proposed regulation Sec. 39.13(j)(4)(i)-(iii) presents practicability
challenges and, if so, what those challenges are, and how the proposed
standard of timeliness could be improved.
Question 6: With respect to the proposed standard of timeliness for
a one business day margin call:
(a) Are there other currencies, besides JPY, where relevant banking
conventions render payment before the second U.S. business day after a
margin call is issued impracticable? If so, the Commission requests
commenters to specifically identify any such currencies, and provide
specifics about the operational issues involved for each.
(b) Should the Commission establish a mechanism (e.g., through
action by Commission order, potentially with authority delegated to the
Director of the Division of Clearing and Risk, or through action by
DCOs) to address cases where the taxonomy of which currencies can
practicably be paid on the same day/first U.S. business day/second U.S.
business day after a margin call is issued should be changed, due to
changes in banking conventions or newly discovered information?
(c) The Commission requests comment on whether, and if so, how,
proposed regulation Sec. 39.13(j)(4) should explicitly address timing
of payment of margin in the event of an unscheduled United States
banking holiday (e.g., due to a national day of mourning).
(d) The Commission requests comment on whether, and if so, how,
proposed regulation Sec. 39.13(j) should explicitly address timing of
payment of margin in the event of scheduled or unscheduled closures of
United States securities markets.
[[Page 22943]]
Question 7: With respect to the criteria for extending payment of
margin in EUR due to a banking holiday in the Eurozone pursuant to
proposed regulation Sec. 39.13(j)(4)(iv), the Commission requests
comment on whether, and if so, how, the banking laws of national
authorities within the Eurozone, operational issues, or other factors
present practicability challenges to compliance. If commenters believe
such challenges exist, the Commission seeks comment on whether a
different standard would be more practicable, while achieving the goal
of preventing customers or investment managers from claiming an
extension of time to pay margin due to banking holidays in a
multiplicity of jurisdictions, or in (a) jurisdiction(s) with which
such customer or investment manager has no significant commercial
nexus.
Question 8: In anticipation of potential developments with respect
to the use of central bank digital currencies or other digital assets,
the Commission requests comment on whether and, if so, how, proposed
regulation Sec. 39.13(j)(4) should explicitly address the timing of
payment of margin in digital assets.
Question 9: The Commission requests comment regarding whether there
are any other international considerations, beyond the time required to
process payment of margin in different currencies, that the Commission
should take into account in establishing requirements for compliance
with the ``one business day'' margin call standard for purposes of
proposed regulation Sec. 39.13(j)(4). If so, the Commission requests
comment regarding how proposed regulation Sec. 39.13(j) should be
modified, if at all, to account for such considerations.
F. Proposed Regulation Sec. 39.13(j)(5)-(10)
Where a clearing member permits disbursements on a separate account
basis, it is important that the clearing member treat such accounts as
separate in a consistent manner. As FIA noted in its June 26, 2019
letter, customer agreements that provide for separate account treatment
generally require that a separate account be margined separately from
any other account maintained for the customer with the FCM, and assets
held in one separate account should not ordinarily be used to meet or
offset any obligations of another separate account, including
obligations that it or another investment manager may have incurred on
behalf of a different account of the same customer.\71\ FIA observed
that these restrictions serve to assure the customer, or the asset
manager responsible for a particular account, that the account will not
be subject to unanticipated interference that may exacerbate stress on
a customer's aggregate exposure to the FCM.\72\ Additionally, FIA noted
that where an FCM treats separate accounts as separate customers for
risk management purposes, the FCM may manage risk more conservatively
against the customer under the assumption that the customer has fewer
assets than it may in fact have.\73\
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\71\ First FIA Letter.
\72\ Id.
\73\ Id.
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Accordingly, the Commission in proposed regulation Sec.
39.13(j)(5)-(10) proposes to adopt those conditions in CFTC Letter No.
19-17 designed to provide for consistent treatment of separate
accounts. Proposed regulation Sec. 39.13(j)(5)-(10) requires a
separate account of a customer to be treated separately from other
separate accounts of the same customer for purposes of certain existing
computational and recordkeeping requirements, which would otherwise be
met by treating accounts of the same customer on a combined basis.
Because accounts subject to proposed regulation Sec. 39.13(j) would be
risk-managed on a separate basis, the Commission believes it is
appropriate for the proposed regulation to provide that DCOs that
permit separate account treatment require that the relevant clearing
FCMs similarly apply these risk-mitigating computational and
recordkeeping requirements on a separate account basis. The effect of
the requirements in these paragraphs is to augment the FCM's existing
obligations under various provisions of regulation Sec. 1.17.
Proposed regulation Sec. 39.13(j)(5) provides that the margin
requirement for each separate account is calculated independently from
all other separate accounts of the same customer, with no offsets or
spreads recognized across the separate accounts. A clearing member
would be required to treat each separate account of a customer
independently from all other separate accounts of the same customer for
purposes of computing capital charges for under-margined customer
accounts in determining its adjusted net capital under regulation Sec.
1.17. Additionally, proposed regulation Sec. 39.13(j)(6) provides that
the clearing member must record each separate account independently in
its books and records. In other words, the clearing member must record
the balance of each separate account either as a receivable or payable,
with no offsets between other separate accounts of the same customer. A
clearing member would be required to treat each separate account of a
customer independently from all other separate accounts of the same
customer for purposes of determining whether a receivable from a
separate account that represents a debit or deficit ledger balance may
be included in the clearing member's current assets in computing its
adjusted net capital under regulation Sec. 1.17(c)(2).
Proposed regulation Sec. 39.13(j)(7) provides that the receivable
for a debit or deficit from a separate account must only be considered
a current or allowable asset for purposes of regulation Sec.
1.17(c)(2) based on the assets of that separate account, and not on the
assets held in another separate account of the same customer. Proposed
regulation Sec. 39.13(j)(8) provides that in calculating the amount of
its own funds it must use to cover debit or deficit balances, the
clearing member must include any debit or deficit of any separate
account, and reflect that calculation on the applicable report.
Proposed regulation Sec. 39.13(j)(9) provides that the clearing
member must include the margin deficiency of each separate account, and
cover such deficiency with its own funds, as applicable, for purposes
of its residual interest and legally segregated operationally
commingled compliance calculations, as applicable under Commission
regulations Sec. Sec. 1.22, 22.2, and 30.7. Lastly, proposed
regulation Sec. 39.13(j)(10) provides that in determining its residual
interest target for purposes of Commission regulation Sec. 1.23(c),
the clearing member must calculate customer receivables computed on a
separate account basis. Currently, Commission regulations require an
FCM to maintain its own capital, or residual interest, in customer
segregated accounts in an amount equal to or greater than its
customers' aggregate under-margined accounts.\74\ Additionally, each
day, an FCM is required to perform a segregated calculation to verify
its compliance with segregation requirements. The FCM must file a daily
electronic report showing its segregation calculation with its DSRO,
and the DSRO must be provided with electronic access to the FCM's bank
accounts to verify that the funds are maintained. The FCM must also
assure its DSRO that when it meets a margin call for customer
positions, it never uses value provided by one customer to meet another
customer's
[[Page 22944]]
obligation.\75\ These requirements are intended to prevent FCMs from
being induced to cover one customer's margin shortfall with another
customer's excess margin, and allow DSROs to verify that FCMs are not
in fact doing so. Proposed regulation Sec. 39.13(j)(10) is designed to
ensure that margin deficiencies are calculated accurately for accounts
receiving separate treatment, and that such deficiencies are covered
consistent with existing Commission regulations.
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\74\ See e.g., 17 CFR 1.22(c)(3); 17 CFR 22.2(f)(6)(iii)(A).
\75\ See e.g., 17 CFR 22.2(g).
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G. Proposed Regulation Sec. 39.13(j)(11)
Proposed regulation Sec. 39.13(j)(11) provides that where the
customer of separate accounts subject to separate treatment has
appointed a third party as the primary contact to the clearing member,
the clearing member must obtain and maintain current contact
information of an authorized representative at the customer and take
reasonable steps to verify that such person is in fact an authorized
representative of the customer. The clearing member would be required
to review and, if necessary, update such information no less than
annually. In many cases, an investment manager acts under a power of
attorney on behalf of a customer, and the FCM has little direct contact
with the customer. Proposed regulation Sec. 39.13(j)(11) is designed
to ensure that clearing FCMs have a reliable means of contacting
customers directly if the investment manager fails to pay promptly.
Request for Comment
Question 10: The Commission requests comment on whether it should
prescribe specific steps that a DCO must require a clearing member to
take to verify the identity of an authorized representative of a
customer, and if so, what such steps should entail. The Commission
further requests comment on the potential time and cost burden of such
steps. Commenters are requested to provide quantitative data where
available.
H. Proposed Regulation Sec. 39.13(j)(12)
Proposed regulation Sec. 39.13(j)(12) provides that the clearing
member must provide each customer using separate accounts with a
disclosure that, pursuant to part 190 of the Commission's regulations,
all separate accounts of the customer in each account class will be
combined in the event of the clearing member's bankruptcy. The
disclosure statement must be delivered separately to the customer via
electronic means in writing or in another manner in which the clearing
member customarily delivers disclosures pursuant to applicable
Commission regulations, and as permissible under its customer
documentation. The clearing member must also maintain documentation
demonstrating that the disclosure statement was delivered directly to
the customer. The clearing member must also include the disclosure
statement on its website or within its disclosure documentation, as
required by Commission regulation Sec. 1.55(i).
The Bankruptcy Reform Act of 1978 \76\ enacted subchapter IV of
chapter 7 of the Bankruptcy Code, title 11 of the U.S. Code, to add
certain provisions designed to afford enhanced protections to commodity
customer property and protect markets from the reversal of certain
transfers of money or other property, in recognition of the complexity
of the commodity business.\77\ The Commission enacted part 190 of its
regulations, 17 CFR part 190, to implement subchapter IV. Under part
190, all separate accounts of a customer in an account class will be
combined in the event of a clearing member's bankruptcy.\78\ The
Commission proposes to adopt proposed regulation Sec. 39.13(j)(12) so
that customers receive full and fair disclosure as to the treatment of
their accounts in a clearing FCM bankruptcy.
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\76\ Public Law 95-598, 92 Stat. 2549.
\77\ Bankruptcy, 46 FR 57535, 57535-36 (Nov. 24, 1981)
\78\ 17 CFR 190.08(b)(2)(i) and (xii) (Aggregate the credit and
debit equity balances of all accounts of the same class held by a
customer in the same capacity--Except as otherwise provided in this
paragraph (b)(2), all accounts that are deemed to be held by a
person in its individual capacity shall be deemed to be held in the
same capacity--Except as otherwise provided in this section, an
account maintained with a debtor by an agent or nominee for a
principal or a beneficial owner shall be deemed to be an account
held in the individual capacity of such principal or beneficial
owner.).
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I. Proposed Regulation Sec. 39.13(j)(13)
Proposed regulation Sec. 39.13(j)(13) provides that the clearing
member must disclose in its Disclosure Document required under
Commission regulation Sec. 1.55(i) that it permits the separate
treatment of accounts for the same customer. Regulation Sec. 1.55 was
adopted to ``advise new customers of the substantial risk of loss
inherent in trading commodity futures.'' \79\ The Commission amended
regulation Sec. 1.55 in 2013 to, among other things, add new paragraph
(i) requiring FCMs to disclose to customers all information about the
FCM, including its business, operations, risk profile, and affiliates,
that would be material to the customer's decision to entrust funds to
and otherwise do business with the FCM and that is otherwise necessary
for full and fair disclosure.\80\ Such disclosures include material
information regarding specific topics identified in regulation Sec.
1.55(k), which include a basic overview of customer fund segregation,
as well as current risk practices, controls, and procedures.\81\ These
disclosures are designed to enable customers to make informed judgments
regarding the appropriateness of selecting an FCM and enhance the
diligence that a customer can conduct prior to opening an account and
on an ongoing basis.\82\
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\79\ Adoption of Customer Protection Rules, 43 FR 31886, 31888
(July 24, 1978).
\80\ 17 CFR 1.55(i).
\81\ 17 CFR 1.55(k)(8), (11).
\82\ Enhancing Protections Afforded Customers and Customer Funds
Held by Futures Commission Merchants and Derivatives Clearing
Organizations, 78 FR 68506, 68564 (Nov. 14, 2013).
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The Commission believes that the application of separate account
treatment for some customers of a clearing FCM, as permitted by a DCO,
is material to the decision to entrust funds to and otherwise do
business with the FCM with respect to customers of such FCM generally
because, in the event that separate account treatment for some
customers were to contribute to a loss that exceeds the FCM's ability
to cover, that loss might affect the segregated funds of all of the
FCM's customers in one or more account classes. Accordingly, the
Commission proposes regulation Sec. 39.13(j)(13) to ensure that
customers are apprised of a matter that is relevant to the clearing
FCM's risk management policies.
J. Proposed Regulation Sec. 39.13(j)(14)
Proposed regulation Sec. 39.13(j)(14) provides that, to the extent
the clearing member treats the separate accounts of a customer as
accounts of separate entities, the clearing member must (i) apply such
treatment in a consistent manner over time; (ii) provide a one-time
notification to its DSRO and any DCO of which it is a clearing member
that it will apply such treatment; \83\ and (iii) maintain and keep
current a list of all separate accounts receiving such treatment. With
respect to proposed regulation Sec. 39.13(j)(14)(iii), the clearing
member would be required to conduct a review of its records of accounts
receiving separate treatment no less than quarterly. Proposed
regulation
[[Page 22945]]
Sec. 39.13(j)(14) is intended to ensure that clearing FCMs employ
separate account treatment in a way that is consistent with the
customer protection and DCO risk management provisions of the CEA and
Commission regulations, that DSROs are able to effectively monitor and
regulate clearing FCMs that engage in separate account treatment, and
that clearing FCMs have the records necessary to understand which
accounts receive separate treatment for purposes of monitoring
compliance with the proposed regulation.
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\83\ As stated in the proposed regulatory text below, once this
notification is made, the clearing member would not be required to
repeat it. In other words, once a clearing member notifies its DSRO
that it will apply separate account treatment to one or more
customers, such clearing member would not be required to provide the
same notification to its DSRO each time it applies separate account
treatment to a new or additional customer.
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The Commission recognizes that, while bona fide business or risk
management purposes may at times warrant application or cessation of
separate account treatment, clearing members should not apply or cease
separate account treatment for reasons, or in a manner, that would
contravene the customer protection and risk mitigation purposes of the
CEA and Commission regulations. For instance, a clearing member should
not switch between separate and combined treatment for customer
accounts in order to achieve more preferable margining outcomes or
offset margin shortfalls in particular accounts. The Commission
recognizes that there are a wide variety of circumstances that may
indicate inconsistent application of separate account treatment, and
proposes to provide DCOs with a degree of discretion in ascertaining,
consistent with their rules, whether a clearing member applies such
treatment consistently over time.\84\
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\84\ Core Principle A provides that a DCO shall have reasonable
discretion in establishing the manner by which it complies with each
core principle. Section 5b(c)(2)(A)(ii) of the CEA, 7 U.S.C. 7a-
1(c)(2)(A)(ii).
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Request for Comment
Question 11: The Commission requests comment on the appropriateness
of its proposed approach of providing DCOs with discretion in
determining whether a clearing FCM has applied separate account
treatment consistently over time.
III. Cost Benefit Considerations
A. Statutory and Regulatory Background
Core Principle D, concerning risk management, imposes a number of
duties upon DCOs related to their ability to manage the risks
associated with discharging their responsibilities as DCOs, measuring
credit exposures, limiting exposures to potential default-related
losses, margin requirements, and risk management models and
parameters.\85\ Among other requirements, Core Principle D requires
that the margin required from each member and participant of a DCO be
sufficient to cover potential exposures in normal market
conditions.\86\ Commission regulation Sec. 39.13 implements Core
Principle D, including through regulation Sec. 39.13(g)(8)(iii)'s
restrictions on withdrawal of customer initial margin. Regulation Sec.
39.13(g)(8)(iii) is designed to ensure that DCOs do not permit clearing
FCMs to allow customers to withdraw funds from their accounts unless
sufficient funds remain to meet customer initial margin requirements
with respect to all products and swap portfolios held in the customer's
account and cleared by the DCO. This requirement is intended to prevent
the under-margining of customer accounts, and thus mitigate the risk of
a clearing member default and the consequences that could accrue to the
broader financial system.
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\85\ Section 5b(c)(2)(D) of the CEA, 7 U.S.C. 7a-1(c)(2)(D).
\86\ Section 5b(c)(2)(D)(iv) of the CEA, 7 U.S.C. 7a-
1(c)(2)(D)(iv).
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Proposed regulation Sec. 39.13(j) amends regulation Sec. 39.13 by
allowing a DCO to permit a clearing FCM to treat accounts separately
for purposes of regulation Sec. 39.13(g)(8)(iii), subject to specified
conditions. Those conditions are in turn designed to ensure that
clearing FCMs (i) carry out such separate account treatment in a
consistent and documented manner; (ii) monitor customer accounts on a
separate and combined basis; (iii) identify and act upon instances of
financial or operational distress that necessitate a cessation of
separate account treatment; (iv) provide appropriate disclosures to
customers regarding separate account treatment; and (v) apprise their
DSROs when they apply separate account treatment or an event has
occurred that would necessitate cessation of separate account
treatment. The Commission believes that separate account treatment,
subject to these conditions, is consistent with Core Principle D.
B. Consideration of the Costs and Benefits of the Commission's Action
1. CEA Section 15(a)
Section 15(a) of the CEA requires the Commission to ``consider the
costs and benefits'' of its actions before promulgating a regulation
under the CEA or issuing certain orders.\87\ Section 15(a) further
specifies that the costs and benefits shall be evaluated in light of
five broad areas of market and public concern: (1) protection of market
participants and the public, (2) efficiency, competitiveness and
financial integrity of markets, (3) price discovery, (4) sound risk
management practices, and (5) other public interest considerations
(collectively referred to herein as the Section 15(a) Factors).
Accordingly, the Commission considers the costs and benefits associated
with the proposed regulation in light of the Section 15(a) Factors. In
the sections that follow, the Commission considers: (1) the costs and
benefits of the proposed regulation; (2) the alternatives contemplated
by the Commission and their costs and benefits; and (3) the impact of
the proposed regulation on the Section 15(a) Factors.
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\87\ 7 U.S.C. 19(a).
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The Commission notes that this consideration of costs and benefits
is based on, inter alia, the understanding that the futures and swaps
markets function internationally, with many transactions involving U.S.
firms taking place across international boundaries, with some
Commission registrants and their clients being organized outside of the
United States, with leading industry members typically conducting
operations both within and outside the United States, and with industry
members commonly following substantially similar business practices
wherever located. Where the Commission does not specifically refer to
matters of location, the discussion of costs and benefits below refers
to the effects of the proposed regulation on all relevant futures and
swaps activity, whether by virtue of the activity's physical location
in the United States or by virtue of the activity's connection with
activities in, or effect on, U.S. commerce under CEA section 2(i).
2. Costs and Benefits of the Proposed Regulation
The baseline for the Commission's consideration of the costs and
benefits of the proposal is the Commission's current regulation Sec.
39.13. The Commission recognizes, however, that to the extent that
clearing FCMs have relied on CFTC Letter No. 19-17, the actual costs
and benefits of the proposed regulation may not be as significant.
a. Benefits
Regulation Sec. 39.13(g)(8)(iii) provides that a DCO shall require
its clearing members to ensure that their customers do not withdraw
funds from their accounts with such clearing members if such withdrawal
would result in funds insufficient to meet the customer initial margin
requirements with respect to all products and swap portfolios held in
the customer's account which are cleared by the DCO. This requirement
[[Page 22946]]
serves important customer funds protection and risk mitigation
purposes. However, combination of all accounts of the same customer
within the same regulatory account classification for purposes of
margining and determining funds available for disbursement may make it
challenging for certain customers and their investment managers to
achieve certain commercial purposes.\88\ For example, where a customer
has apportioned assets among multiple investment managers, neither the
customer nor their investment managers may be able to obtain certainty
that the individual portion of funds allocated to one investment
manager will not be affected by the activities of other investment
managers. Where clearing FCMs are able to treat the separate accounts
of a single customer as accounts of separate entities, subject to
certain regulatory safeguards, customers are better able to leverage
the skills and expertise of investment managers, and realize the
benefits of a balance of investment strategies in order to meet
specific commercial goals in a manner that would not contravene the
customer funds protection and risk mitigation purposes of the CEA and
Commission regulations.
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\88\ See First FIA Letter.
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The Commission also notes that, to the extent that DCOs and their
clearing FCMs currently rely on the no-action position in CFTC Letter
No. 19-17, those FCMs would retain the benefit of costs and resources
already expended in order to comply with the conditions of the no-
action position. In a letter to the Commission staff dated April 1,
2022, FIA noted that, ``For many FCMs and their customers, the terms
and conditions of the no-action position . . . presented significant
operational and systems challenges,'' as FCMs were required to ``(i)
adopt new practices for stress testing accounts; (ii) review and
possibly change margin-timing expectations for non-US accounts; (iii)
undertake legal analysis to clarify interpretive questions; and (iv)
revise their segregation calculation and recordkeeping practices,'' as
well as engage in ``time-consuming documentation changes and customer
outreach.'' \89\
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\89\ FIA letter dated Apr. 1, 2022 to Clark Hutchison and Amanda
Olear (Second FIA Letter).
---------------------------------------------------------------------------
FIA further described these challenges in a letter to the
Commission staff dated May 11, 2022, noting that in order to meet the
conditions of the no-action position, FCMs were required to review and
in some cases amend customer agreements, and identify and implement
information technology systems changes.\90\ FIA also asserted that FCMs
were likely required to revise internal controls and procedures.\91\
FIA stated that while the costs incurred by each FCM varied depending
on its customer base, among larger FCMs with a significant
institutional customer base, personnel costs would have included
identifying and reviewing up to 3,000 customer agreements to determine
which agreements required modification, and then negotiating amendments
with customers or their advisers.\92\ FIA further stated that because
the relevant provisions of these agreements were not uniform, they
generally required individual attention.\93\
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\90\ FIA letter dated May 11, 2022 to Robert Wasserman (Third
FIA Letter). FIA noted that these changes were particularly
challenging for FCMs that are part of a bank holding company
structure, as ``[m]odifying integrated technology information
systems across a bank holding company structure is complicated,
expensive and time consuming.'' Id.
\91\ Id.
\92\ Id.
\93\ Id.
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If the Commission were to decide to forego this rulemaking, and if
the no-action position expired, these changes would need to be
reversed. FIA noted that, if required to reverse these changes, the
burdens on FCMs and their customers would be ``significant.'' \94\
Specifically, FIA asserted that FCMs would again be required to review
and amend customer agreements, noting that negotiations to amend such
agreements would likely prove ``extremely difficult'' as ``advisers
would seek to assure that their ability to manage their clients' assets
entrusted to them would not be adversely affected by the actions (or
inactions) of another adviser.'' \95\ FCMs would also again be required
to revise their internal controls and procedures, and identify and
implement information technology systems changes.\96\ DCOs, FCMs, and
customers of FCMs already relying on the no-action position would also
obtain the benefit of continuing to leverage existing systems and
procedures to provide for separate account treatment.
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\94\ Second FIA Letter.
\95\ Third FIA Letter. FIA further noted that ``an adviser may
be less likely to use exchange-traded derivatives to hedge its
customers' cash market positions if the adviser could not have
confidence that it would be able to withdraw its customers' excess
margin as necessary to meet its obligations in other markets.'' Id.
\96\ Id.
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Request for Comment
Question 12: The Commission requests comment on the extent to which
DCOs, clearing members, and customers currently rely on the no-action
position in CFTC Letter No. 19-17 (including the extensions of time in
CFTC Letters No. 20-28, 21-29, and 22-11) to permit and/or engage in
separate account treatment. Commenters are requested to provide data
where available (e.g., number of DCOs and/or clearing members that
allow for separate account treatment, or size of clearing members
providing for separate account treatment by customer funds in
segregation or number of customers, as well as the nature and the
extent of the costs that they would incur if the relevant no-action
position were to be permitted to expire).
b. Costs
The proposed regulation would not require DCOs to allow for
separate account treatment, and DCOs that do not presently allow for
separate account treatment, and do not desire to do so in the future,
would not incur any costs as a result of the proposed regulation.
Furthermore, the Commission believes that a DCO electing to allow for
separate account treatment will do so because they believe that the
benefits of doing so will exceed the costs of doing so.
DCOs that wish to allow for separate account treatment would likely
incur certain costs related to the implementation of the proposed
regulation, some of which would be incurred on a one-time basis, and
some of which would be recurring. DCOs that wish to allow for separate
account treatment would likely incur costs in connection with updating
their rulebooks to allow for separate account treatment under the
conditions codified in the proposed regulation. The Commission
anticipates that this would generally be a one-time cost. Such DCOs
would also likely incur legal, compliance, and other costs related to
monitoring, examination, and enforcement with respect to clearing
members and customers that engage in separate account treatment. The
Commission expects that such costs may be reduced where a DCO already
allows for separate account treatment under the terms of the no-action
position and is able to leverage existing rules and compliance
infrastructure to implement the proposed regulation. While the
Commission anticipates that certain DCOs that do not now rely on the
no-action position may in the future choose to allow for separate
account treatment, the Commission also expects that the number of DCOs
that would do so would be small.
The Commission notes however that because the provisions of the
proposed regulation vary in some respects from the terms of the no-
action position, and
[[Page 22947]]
DCOs may implement the proposed regulation in their rules in a
different manner than the conditions of the no-action position,\97\ at
least some additional costs are likely to be incurred by DCOs that
already rely on the no-action position.
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\97\ For instance, CME has provided for separate account
treatment under the terms of the no-action position through member
bulletins. See, e.g., Financial and Regulatory Bulletin # 20-01,
CFTC Letter No. 20-28 Extension of CFTC Letter No. 19-17 Time-
Limited No-Action Relief with Respect to the Treatment of Separate
Accounts by Futures Commission Merchants, Sept. 23, 2020, available
at https://www.cmegroup.com/notices/clearing/2020/09/frb_20-
01.html.
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The costs of the proposed regulation will likely vary across DCOs
depending on whether they already allow for separate account treatment
and the nature of their existing rule and compliance infrastructures to
support separate account treatment, and as such would be difficult to
quantify with precision.
Similarly, the proposed regulation would not require clearing FCMs
to engage in separate account treatment. Clearing FCMs that do not now
engage in separate account treatment, and wish not to do so in the
future, would not incur any costs as a result of the proposed
regulation. However, for those clearing FCMs that choose to comply with
the proposed regulation, the costs of compliance could be significant,
and may vary based on factors such as the size and existing compliance
resources of a particular FCM. While the Commission, in connection with
its Paperwork Reduction Act assessment below, estimates that certain
reporting, disclosure, and recordkeeping costs would not be significant
on an entity level, as FIA noted, taken as a whole, compliance with the
conditions that the proposed regulation would codify could result in
significant operational and systems costs.
In other words, the Commission anticipates that clearing FCMs--
specifically, existing clearing FCMs that do not already rely on the
no-action position, but may choose in future to rely upon the proposed
regulation--may incur relatively significant costs related to designing
and implementing new systems, or enhancing existing systems, to comply
with the proposed regulation, as well as negotiation costs, even where
direct recordkeeping costs may not be significant on an entity-by-
entity basis.\98\ However, the Commission notes that many of the
requirements of the proposed regulation would involve one-time costs in
order to update systems, procedures, disclosure documents, and
recordkeeping practices, and that ongoing costs of maintaining
compliance may be less significant. To the extent clearing FCMs already
rely on the no-action position, the tools (e.g., software, as well as
policies and procedures) necessary to comply with the proposed
regulations on an ongoing basis will largely have already been built,
and the costs associated with compliance will largely have already been
incurred. Furthermore, while the Commission expects that certain FCMs
that do not now rely on the no-action position may in the future choose
to engage in separate account treatment, and would need to incur these
costs to come into compliance with the proposed regulation, the
Commission also anticipates that the number of FCMs that would do so
would be small.
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\98\ This may be true to a lesser extent with respect to new
entrants to the FCM business, in that those FCMs would incur the
cost of implementing policies, procedures, and systems that comply
with the conditions of the proposed regulation, but would not need
to retrofit existing policies, procedures, and systems.
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C. Costs and Benefits of the Commission's Action as Compared to
Alternatives
The Commission considered several alternatives to the proposed
regulation. On one hand, the Commission, for analytical completeness,
considered allowing the no-action position announced in CFTC Letter No.
19-17 and its superseding letters to expire. When compared only to the
existing regulation Sec. 39.13(g)(8)(iii), which is the baseline for
the cost and benefit considerations, this alternative imposes neither
costs nor benefits, because this approach would effectively constitute
a reversion to regulation Sec. 39.13(g)(8)(iii) prior to the issuance
of CFTC Letter No. 19-17 and its superseding letters. However, the
Commission does not anticipate that there would be any significant
benefit to this approach relative to the approach contemplated by the
proposed regulation, and indeed, preliminarily believes that there
would be significant costs to market participants when compared to the
proposed regulation, particularly in consideration of market
participants' reliance on the no-action letters, which the proposed
regulation is designed to codify. Allowing the no-action position to
expire without codifying its terms would, as noted above, preclude
customers from achieving certain important financial objectives that
could be achieved in a manner consistent with the customer funds
protection and risk mitigation purposes of the CEA and Commission
regulations. Additionally, while it would not result in costs for FCMs
that do not now choose to comply with the conditions of the no-action
position, it would appear to require clearing FCMs that currently rely
on the no-action position to make significant expenditures of funds and
resources in order to rework systems, procedures, and customer
documentation to ensure compliance with regulation Sec.
39.13(g)(8)(iii).
Because the no-action position has been applied successfully since
July 2019, the Commission preliminarily believes codifying its
provisions to be the most appropriate and beneficial approach for FCMs
and their customers, and will preserve the customer funds protection
and risk mitigation conditions of the no-action position.
Alternatively, the Commission, for analytical completeness, also
considered extending the no-action position absent the conditions. This
alternative would preserve the benefits of the no-action position for
DCOs, FCMs, and customers. However, as discussed further below, the
conditions of the no-action position--proposed to be codified herein--
are designed to permit separate account treatment only to the extent
that such treatment would not contravene the risk mitigation goals of
regulation Sec. 39.13. The Commission preliminarily believes that
extending the no-action position without the conditions would
exacerbate risks for DCOs, FCMs, and customers. For instance, without a
requirement to cease separate account treatment in cases in which a
customer is in financial distress, it is more likely that an under-
margining scenario would be exacerbated, and a customer default to the
clearing FCM--and potentially a default of the clearing FCM to the
DCO--would be more likely.
D. Section 15(a) Factors
Section 15(a) of the CEA requires the Commission to consider the
effects of its actions in light of the following five factors:
1. Protection of Market Participants and the Public
Section 15(a)(2)(A) of the CEA requires the Commission to evaluate
the costs and benefits of a proposed regulation in light of
considerations of protection of market participants and the public. The
Commission preliminarily believes that the amendments proposed herein
maintain the efficacy of protections for customers and the broader
financial system contained in Core Principle D and regulation Sec.
39.13.
Regulation Sec. 39.13(g)(8)(iii) implements Core Principle D
requirements for DCOs to limit exposure to potential losses from
defaults and
[[Page 22948]]
maintain margin sufficient to cover potential exposures in normal
market conditions \99\ by requiring DCOs to ensure that their members
do not allow customers to withdraw funds from their accounts if such
withdrawal would create or exacerbate an initial margin shortfall. This
requirement protects not only market participants by requiring clearing
FCMs to ensure that adequate margin exists to cover customer positions;
it also protects the public from disruption to the wider financial
system by mitigating the risk that a clearing FCM will default due to
customer nonpayment of variation margin obligations combined with
insufficient initial margin. While DCOs are required to, and do,
maintain robust default management protections and procedures, any
default of a clearing FCM nonetheless increases the risk of a DCO
default. The conditions of the no-action position outlined in CFTC
Letter No. 19-17, and proposed to be codified herein, are designed to
effectuate these customer protection and risk mitigation goals
notwithstanding a clearing FCM's application of separate account
treatment. For example, separate account treatment is not permitted in
certain circumstances outside the ordinary course of business (e.g.,
where a clearing FCM learns a customer is in financial distress, and
thus may be unable promptly to meet initial margin requirements,
whether in one or more separate accounts or on a combined account
basis).
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\99\ 7 U.S.C. 7a-1(c)(2)(D)(iii)-(iv).
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Proposed regulation Sec. 39.13(j) would also codify conditions for
clearing FCMs designed to ensure that they collect information
sufficient to understand the value of assets dedicated to a separate
account, apply separate account treatment consistently, and maintain
reliable lines of contact for the ultimate customer of the account.
DCOs have successfully relied on these conditions for over two years,
and the Commission believes codification of these conditions, as
proposed herein, supports protection of market participants and the
public.
2. Efficiency, Competitiveness, and Financial Integrity of Futures
Markets
Section 15(a)(2)(B) of the CEA requires the Commission to evaluate
the costs and benefits of a proposed regulation in light of efficiency,
competitiveness, and financial integrity of futures markets. The
Commission preliminarily believes that the proposed regulation may
carry potential implications for the financial integrity of markets,
but not for the efficiency or competitiveness of markets, which the
Commission preliminarily believes remain unchanged.
As stated above, the purposes of the Commission's customer funds
protection and risk management regulations, including regulation Sec.
39.13(g)(8)(iii) include not just protection of customer assets, but
also mitigation of systemic risk: a customer in default to a clearing
FCM may in turn trigger the clearing FCM to default to the DCO, with
cascading consequences for the DCO and the wider financial system. The
proposed amendments reflect the Commission's preliminary determination
that the conditions of CFTC Letter No. 19-17, as proposed to be
codified herein, are sufficient and appropriate to guard against such
risk for purposes of regulation Sec. 39.13(g)(8)(iii).
In CFTC Letter No. 19-17, the Commission staff highlighted market
participants' concerns that the Commission should recognize ``diverse
practices among FCMs and their customers with respect to the handling
of separate accounts of the same beneficial owner'' as consistent with
regulation Sec. 39.13(g)(8)(iii). FIA, in particular, outlined several
business cases in which a customer or a clearing FCM may want to apply
separate account treatment, and each of SIFMA-AMG, FIA, and CME
outlined controls that clearing FCMs could apply to ensure that, in
instances in which separate account treatment is desired, such
treatment can be applied in a manner that effectively prevents systemic
risk.\100\ By proposing to codify the no-action position provided for
by CFTC Letter No. 19-17 and its superseding letters, the Commission is
proposing to preserve the option for clearing FCMs to engage in
separate account treatment, thereby providing clearing FCMs with
further opportunity to compete on services offered to customers, and
providing customers with a greater variety of options to address their
financial needs.
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\100\ See First FIA Letter; SIFMA-AMG Letter; CME Letter.
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3. Price Discovery
Section 15(a)(2)(C) of the CEA requires the Commission to evaluate
the costs and benefits of a proposed regulation in light of price
discovery considerations. The Commission preliminarily believes that
the proposed amendments will not have a significant impact on price
discovery.
4. Sound Risk Management Practices
Section 15(a)(2)(D) of the CEA requires the Commission to evaluate
the costs and benefits of a proposed regulation in light of sound risk
management practices. As discussed above, regulation Sec.
39.13(g)(8)(iii) implements the risk management standards of Core
Principle D by requiring DCOs to ensure that their members do not allow
customers to increase under-margining in their accounts through
withdrawals of funds. Thus, any amendment to regulation Sec. 39.13
should not undermine these risk management goals. As discussed further
above with regard to protection of customers and the public, the
conditions of the no-action position proposed to be codified herein are
designed, and have been successfully used, to allow clearing FCMs to
engage in separate account treatment in a manner that is consistent
with the protection of customer funds and the mitigation of systemic
risk, including by requiring the application of separate account
treatment in a consistent manner, and requiring regulatory
notifications and the cessation of separate account treatment in
certain instances of operational or financial distress. The Commission
therefore preliminarily believes the proposed regulations promotes
sound DCO risk management practices.\101\
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\101\ See, e.g., First FIA Letter (describing use of separate
account treatment for hedging purposes).
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5. Other Public Interest Considerations
Section 15(a)(2)(e) of the CEA requires the Commission to evaluate
the costs and benefits of a proposed regulation in light of other
public interest considerations. The Commission is identifying a public
interest benefit in codifying the Divisions' no-action position, where
the efficacy of that position has been demonstrated. In such a
situation, the Commission believes it serves the public interest and,
in particular, the interests of market participants, to engage in
notice-and-comment rulemaking, where it seeks and considers the views
of the public in amending its regulations, rather than for market
participants to continue to rely on a time-limited no-action position
that can be easily withdrawn, provides less long-term certainty for
market participants, and offers a more limited opportunity for public
input.
Request for Comment \102\
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\102\ In section II above, the Commission requested comment on
the potential time and cost burden associated with specific steps to
verify the identity of an authorized representative of a customer
pursuant to proposed regulation Sec. 39.13(j)(11), to the extent
that commenters believe the Commission should prescribe such steps.
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Question 13: The Commission requests comment, including any
[[Page 22949]]
available quantifiable data and analysis, concerning the costs and
benefits of the proposed regulation for DCOs, FCMs, and any other
market participant(s), including regarding the extent to which market
participants already enjoy any such benefits or incur any such costs.
Question 14: The Commission requests comment, including any
available quantifiable data and analysis, concerning whether the
tradeoff of costs and benefits of the proposed regulation for DCOs,
FCMs, and any other market participant(s), could be improved by
modifying the set of conditions set forth therein (i.e., by deleting or
modifying in a specified fashion any of the proposed conditions, or by
adding specified additional conditions).
Question 15: The Commission requests comment regarding whether
there are FCMs which chose not to rely on the no-action position
provided by CFTC Letter No. 19-17 due to the conditions required to
rely on that position. The Commission further requests comment on how
those conditions could be modified to mitigate the burden of compliance
while achieving the goals of mitigating systemic risk and protecting
customer funds.
IV. Related Matters
A. Antitrust Considerations
Section 15(b) of the CEA requires the Commission to take into
consideration the public interest to be protected by the antitrust laws
and endeavor to take the least anticompetitive means of achieving the
purposes of the CEA in issuing any order or adopting any Commission
rule or regulation.\103\
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\103\ 7 U.S.C. 19(b).
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The Commission believes that the public interest to be protected by
the antitrust laws is generally to protect competition. The Commission
requests comment on whether the proposed regulation implicates any
other specific public interest to be protected by the antitrust laws.
The Commission has considered the proposed regulation to determine
whether it is anticompetitive and has preliminarily identified no
anticompetitive effects. The Commission requests comment on whether the
proposed regulation is anticompetitive and, if it is, what the
anticompetitive effects are.
Because the Commission has preliminarily determined that the
proposed regulation is not anticompetitive and has no anticompetitive
effects, the Commission has not identified any less anticompetitive
means of achieving the purposes of the CEA. The Commission requests
comment on whether there are less anticompetitive means of achieving
the relevant purposes of the CEA that would otherwise be served by
adopting the proposed regulation.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires agencies to consider
whether the rules they propose will have a significant economic impact
on a substantial number of small entities and, if so, provide a
regulatory flexibility analysis with respect to such impact.\104\ The
rules proposed herein would establish conditions under which DCOs may
permit clearing FCMs to engage in separate account treatment, and
therefore the rules would directly affect DCOs. However, the proposed
regulation would also affect FCMs, insofar as FCMs permitted by DCOs to
engage in separate account treatment, and which choose to do so, would
be required to comply with the conditions proposed to be codified. The
Commission has previously established certain definitions of ``small
entities'' to be used by the Commission in evaluating the impact of its
regulations on small entities in accordance with the RFA.\105\ The
Commission has previously determined that neither DCOs nor FCMs are
small entities for the purpose of the RFA.\106\ Accordingly, the
Chairman, on behalf of the Commission, hereby certifies pursuant to 5
U.S.C. 605(b) that these proposed rules will not have a significant
economic impact on a substantial number of small entities.
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\104\ 5 U.S.C. 601 et seq.
\105\ Bankruptcy Regulations, 86 FR 19324, 19416 (Apr. 13, 2021)
(citing Policy Statement and Establishment of Definitions of ``Small
Entities'' for Purposes of the Regulatory Flexibility Act, 47 FR
18618 (Apr. 30, 1982)).
\106\ See id. (citing New Regulatory Framework for Clearing
Organizations, 66 FR 45604, 45609 (Aug. 29, 2001); Customer Margin
Rules Relating to Security Futures, 67 FR 53146, 53171 (Aug. 14,
2002)).
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C. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) \107\ imposes certain
requirements on Federal agencies in connection with their conducting or
sponsoring any collection of information as defined by the PRA. Any
agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid control number. The Office of Management and Budget (OMB) has not
yet assigned a control number to the new collection.
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\107\ 44 U.S.C. 3501 et seq.
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This proposed rulemaking would result in a new collection of
information within the meaning of the PRA, as discussed below. The
Commission therefore is submitting this proposal to OMB for review, in
accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. If adopted,
responses to this collection of information would be required to obtain
a benefit. Specifically, clearing FCMs would be required to respond to
the collection in order to obtain the benefit of engaging in separate
account treatment for purposes of regulation Sec. 39.13(g)(8)(iii), to
the extent permitted by the DCOs of which they are clearing members.
The Commission will protect proprietary information it may receive
according to the Freedom of Information Act and 17 CFR part 145,
``Commission Records and Information.'' In addition, section 8(a)(1) of
the CEA strictly prohibits the Commission, unless specifically
authorized by the CEA, from making public ``data and information that
would separately disclose the business transactions or market positions
of any person and trade secrets or names of customers.'' \108\ The
Commission also is required to protect certain information contained in
a government system of records according to the Privacy Act of 1974, 5
U.S.C. 552a.
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\108\ 7 U.S.C. 12(a)(1).
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1. Information Provided by Reporting Entities/Persons
The proposed regulation applies directly to DCOs and would not
result in any new collections of information from DCOs. However, to the
extent a DCO permits clearing FCMs to engage in separate account
treatment pursuant to the proposed regulation, such clearing FCMs would
be subject to certain reporting, disclosure, and recordkeeping
requirements as a result of DCO requirements to comply with the
conditions specified in proposed regulation Sec. 39.13(j)(1)-(14). The
Commission estimates burden hours and costs using current regulation
Sec. 39.13 as a baseline. However, the Commission notes that many
clearing FCMs already comply with the conditions of the no-action
position, which are substantially similar to the proposed regulation.
For these clearing FCMs, the Commission expects that any additional
cost or administrative burden associated with complying with the
[[Page 22950]]
proposed regulation would be negligible.\109\
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\109\ However, the Commission expects that FCMs that do not
currently rely on the no-action position, but choose to apply
separate account treatment after the proposed regulation is
finalized, would incur new costs.
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a. Reporting Requirements
The proposed regulation contains three reporting requirements that
could result in a collection of information from ten or more persons
over a 12-month period.
First, proposed regulation Sec. 39.13(j)(1)(iii) requires a
clearing member to communicate promptly in writing to its DSRO and to
any DCO of which it is a clearing member the occurrence of certain
enumerated ``non-ordinary course of business'' events. There are
currently approximately 62 registered FCMs.\110\ The Commission staff
estimates that slightly less than half of all FCMs would engage in
separate account treatment under the proposed regulation, resulting in
approximately 30 respondents. The Commission staff estimates that each
such FCM may experience two non-ordinary course of business events per
year, either with respect to themselves, or a customer. For purposes of
determining the number of responses, the Commission staff anticipates
that additional notifications of substantially the same information,
and at substantially the same time, by means of electronic
communication to additional DCOs of which the FCM is a clearing member
(beyond the notification to the FCM's DSRO) would not materially
increase the time and cost burden for such FCM. Therefore, for purposes
of these estimates, the Commission staff treats a set of notifications
sent to a DSRO and DCOs as a single response.\111\ Accordingly, the
Commission staff estimates a total of two responses per respondent on
an annual basis. In addition, the Commission staff estimates that each
response would take eight hours. This yields a total annual burden of
480 hours. In addition, the Commission staff estimates that respondents
could expend up to $2,384 annually, based on an hourly rate of $149, to
comply with this requirement.\112\ This would result in an aggregated
cost of $71,520 per annum (30 respondents x $2,384).
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\110\ See CFTC, Selected FCM Financial Data as of October 31,
2022 from Reports Filed by November 26, 2022, available at https://www.cftc.gov/sites/default/files/2022-12/01%20-%20FCM%20Webpage%20Update%20-%20October%202022.pdf.
\111\ The Commission staff applies the same assumption to
notifications to DSROs and DCOs with respect to proposed regulation
Sec. 39.13(j)(1)(iv) and proposed regulation Sec.
39.13(j)(14)(ii), discussed below.
\112\ This figure is rounded to the nearest dollar and based on
the annual mean wage for U.S. Bureau of Labor Statistics (BLS)
category 13-2061, ``Financial Examiners.'' BLS, Occupational
Employment and Wages, May 2021 [hereinafter ``BLS Data''], available
at https://www.bls.gov/oes/current/oes_nat.htm. This category
consists of professionals who ``[e]nforce or ensure compliance with
laws and regulations governing financial and securities institutions
and financial and real estate transactions.'' BLS, Occupational
Employment and Wages, May 2021: 13-2061 Financial Examiners,
available at https://www.bls.gov/oes/current/oes132061.htm.
According to BLS, the mean salary for this category is $96,180. This
number is divided by 1,800 work hours in a year to account for sick
leave and vacations and multiplied by 2.5 to account for retirement,
health, and other benefits, as well as for office space, computer
equipment support, and human resources support. This number is
further multiplied by 1.113625 to account for the 11.3625% change in
the Consumer Price Index for Urban Wage-Earners and Clerical Workers
between May 2021 and January 2023 (263.612 to 293.565). BLS, CPI for
Urban Wage Earners and Clerical Workers (CPI-W), U.S. City Average,
All Items--CWUR0000SA0, available at https://www.bls.gov/data/#prices. Together, these modifications yield an hourly rate of $149.
The rounding and modifications applied with respect to the estimated
average burden hour cost for this occupational category have been
applied with respect to each occupational category discussed as part
of this analysis.
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Second, proposed regulation Sec. 39.13(j)(1)(iv) provides an
avenue for a clearing member to resume separate account treatment when
it returns to the ordinary course of business, which would require a
notification to its DSRO and any DCO of which it is a clearing member.
The Commission staff estimates that, in many cases, there may be a
reversion to the ordinary course of business, which a clearing FCM
would need to report to its DSRO and any DCO of which it is a clearing
member in order to resume separate account treatment, in accordance
with the requirements of proposed regulation Sec. 39.13(j)(1)(iv). The
Commission staff estimates that for each non-ordinary course of
business event, there would ultimately be a reversion to the ordinary
course of business, resulting in two additional responses per
respondent on an annual basis. In addition, the Commission staff
estimates that each response would take eight hours. This yields a
total annual burden of 480 hours. In addition, the Commission staff
estimates that respondents could expend up to $2,384 annually, based on
an hourly rate of $149, to comply with this requirement. This would
result in an aggregated cost of $71,520 per annum (30 respondents x
$2,384).
Third, proposed regulation Sec. 39.13(j)(14)(ii) provides that, to
the extent a clearing member treats the separate accounts of a customer
as accounts of separate entities pursuant to the terms of proposed
regulation Sec. 39.13(j), the clearing member must provide a one-time
notification to its designated self-regulatory organization and any DCO
of which it is a clearing member that it will apply such treatment. The
Commission staff estimates this would result in a total of one response
per respondent on a one-time basis, and that respondents could expend
up to $149, based on an hourly rate of $149, to comply with the
proposed regulation. This would result in an annual burden of 30 hours
and an aggregated cost of $4,470 (30 respondents x $149). The aggregate
information collection burden estimate associated with the proposed
reporting requirements is as follows: \113\
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\113\ This estimate reflects the aggregate information
collection burden estimate associated with the proposed reporting
requirements for the first annual period following implementation of
the proposed regulation. Because proposed regulation Sec.
39.13(j)(14)(ii) would result in a one-time reporting requirement,
the Commission staff estimates that for each subsequent annual
period, the number of reports, burden hours, and burden cost would
be reduced accordingly.
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Estimated number of respondents: 30.
Estimated number of reports: 150.
Estimated annual hours burden: 990.
Estimated annual cost: $147,510.
b. Disclosure Requirements
The proposed regulation contains three disclosure requirements that
could affect ten or more persons in a 12-month period.
First, proposed regulation Sec. 39.13(j)(12) requires a clearing
member to provide each customer using separate accounts with a
disclosure that, pursuant to part 190 of the Commission's regulations,
all separate accounts of the customer will be combined in the event of
the clearing member's bankruptcy. The Commission staff estimates that
this would result in a total of one response per respondent on a one-
time basis, and that respondents are likely to spend three hours to
comply with this requirement for a total of 90 annual burden hours and
up to $447 annually, based on an hourly rate of $149. This would result
in an aggregated cost of $13,410 (30 respondents x $447). This estimate
reflects an initial disclosure distributed to existing customers
subject to separate account treatment. The Commission staff expects
that, on a going forward basis, this disclosure would be included in
standard disclosures for new customers, and would therefore not result
in any additional costs.
Second, proposed regulation Sec. 39.13(j)(12)(iii) requires that a
clearing member include the disclosure statement required by proposed
regulation Sec. 39.13(j)(12) on its website or within its Disclosure
Document
[[Page 22951]]
required by regulation Sec. 1.55(i). If the clearing member opts to
update its Disclosure Document, the Commission staff estimates that
this proposed requirement would result in a total of one response on a
one-time basis, and that respondents could expend up to $149 annually,
based on an hourly rate of $149, to comply with the proposed
regulation. This would result in an estimated 30 burden hours annually
and an aggregated cost of $4,470 (30 respondents x $149). This estimate
reflects one updated disclosure distributed to existing customers. If
the clearing member opts to include the disclosure on its website, the
Commission staff estimates that this proposed requirement would result
in a total of one response on a one-time basis, and that respondents
could expend up to $126 annually, based on an hourly rate of $126, to
comply with the proposed regulation.\114\ This would result in an
estimated 30 burden hours annually and an aggregated cost of $3,780 (30
respondents x $126). The Commission staff expects that once the
disclosure is included in the Disclosure Document required by
regulation Sec. 1.55(i) or posted on the clearing member's website,
the clearing member would not incur any additional costs.
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\114\ This figure is based on the annual mean wage for U.S.
Bureau of Labor Statistics (BLS) category 15-1254, ``Web
Developers.'' BLS Data.
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Third, proposed regulation Sec. 39.13(j)(13) requires a clearing
member to disclose in the Disclosure Document required under Commission
regulation Sec. 1.55(i) that it permits the separate treatment of
accounts for the same customer under the terms and conditions of
regulation Sec. 39.13(j). The Commission staff estimates that this
would result in a total of one response per respondent on a one-time
basis, and that respondents could expend up to $149 annually, based on
an hourly rate of $149, to comply with the proposed regulation. This
would result in an estimated 30 burden hours annually and an aggregated
cost of $4,470 (30 respondents x $149). This estimate reflects an
initial updated disclosure distributed to existing customers. The
Commission staff expects that once this disclosure is made, the
disclosure would be included in the Disclosure Document required by
regulation Sec. 1.55(i) going forward, and would not result in any
additional costs.
The aggregate information collection burden estimate associated
with the proposed reporting requirements is as follows: \115\
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\115\ For purposes of this analysis, the Commission staff
calculates the aggregate information collection burden assuming that
respondents choose to include the disclosure statement required by
proposed regulation Sec. 39.13(j)(12) on their websites and within
their Disclosure Document required by proposed regulation Sec.
1.55(i), in order to comply with proposed regulation Sec.
39.13(j)(12)(iii). Additionally, this estimate reflects the
aggregate information collection burden estimate associated with the
proposed disclosure requirements for the first annual period
following implementation of the proposed regulation. Because each of
proposed regulation Sec. 39.13(j)(12), Sec. 39.13(j)(12)(iii), and
Sec. 39.13(j)(13)(ii) would result in a one-time disclosure
requirement for PRA purposes, the Commission staff estimates that
for each subsequent annual period the number of respondents,
reports, burden hours, and burden cost would be reduced accordingly.
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Estimated number of respondents: 30.
Estimated number of reports: 120.
Estimated annual hours burden: 180.
Estimated annual cost: $26,130.
c. Recordkeeping Requirements
The proposed regulation contains three recordkeeping requirements
that could affect ten or more persons in a 12-month period.
First, proposed regulation Sec. 39.13(j)(11) provides that where
the customer of separate accounts subject to separate treatment
pursuant to regulation Sec. 39.13(j) has appointed a third-party as
the primary contact to the clearing member, the clearing member must
obtain and maintain current contact information of an authorized
representative(s) at the customer and take reasonable steps to verify
that such person is in fact an authorized representative of the
customer. The clearing member would be required to review and, as
necessary, update such information on at least an annual basis. The
Commission staff estimates this would result in a total of 600
responses per respondent on an annual basis,\116\ and that respondents
could expend up to $42,000 annually, based on an hourly rate of
$70.\117\ This would result in an estimated 18,000 burden hours
annually and an aggregated cost of $1,260,000 per annum (30 respondents
x $42,000). This estimate contemplates annual validation of contact
information for each customer.
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\116\ FIA stated that while the costs incurred by each FCM to
comply with the conditions of CFTC Letter No. 19-17 varies depending
on customer base, among larger FCMs with a significant institutional
customer base, personnel costs would have included identifying and
reviewing up to 3,000 customer agreements to determine which
agreements required modification, and then negotiating amendments
with customers or their advisors. The Commission staff estimates,
based on the 30 largest FCMs by customer assets in segregation as of
the Commission's FCM financial data report for May 31, 2022, that
there are 18,000 customers of FCMs whose accounts could be in scope
for the proposed regulation, with an average of 600 customers per
FCM.
\117\ This figure is based on the annual mean wage for BLS
category 43-6010, ``Secretaries & Administrative Assistants.'' BLS
Data.
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Second, proposed regulation Sec. 39.13(j)(12)(ii) requires that a
clearing member maintain documentation demonstrating that the part 190
disclosure statement required by proposed regulation Sec. 39.13(j)(12)
was delivered directly to the customer. The Commission staff estimates
that this would result in a total of 600 responses on a one-time basis,
and that respondents could expend up to $4,200 annually, based on an
hourly rate of $70, to comply with the proposed regulation. This would
result in an estimated 1,800 burden hours annually and an aggregated
cost of $126,000 (30 respondents x $4,200). This estimate reflects
initial recordkeeping of documentation that the disclosure was
delivered to existing customers subject to separate account treatment.
The Commission staff estimates that, once such recordkeeping is
complete, the recordkeeping required by proposed regulation Sec.
39.13(j)(12)(ii) would be required only with respect to new customers
who receive disclosures pursuant to proposed regulation Sec.
39.13(j)(12), and the costs and burden hours associated with proposed
regulation Sec. 39.13(j)(12)(ii) would be reduced accordingly.
Third, proposed regulation Sec. 39.13(j)(14)(iii) provides that,
to the extent the clearing member treats the separate accounts of a
customer as accounts of separate entities, pursuant to the terms of
proposed regulation Sec. 39.13(j), the clearing member must maintain
and keep current a list of all separate accounts receiving such
treatment. The Commission staff believes the cost and time burden
associated with, on an ongoing basis, maintaining and keeping current a
list of all separate accounts receiving separate account treatment
would vary among FCMs based on factors such as business conditions,
customer needs, entry of new customers, and exit of other customers,
and would be challenging to estimate with precision. The Commission
staff anticipates that the marginal time and cost burden of the
recordkeeping required by the regulation, done in the routine course of
business, would be negligible. However, proposed regulation Sec.
39.13(j)(14)(iii) also requires a holistic review of such records no
less than quarterly. The Commission staff estimates this would result
in a total of four responses per respondent on an annual basis, and
that respondents could expend up to $2,384 annually, based on an hourly
rate of $149, to comply with the proposed
[[Page 22952]]
regulation.\118\ This would result in an estimated 480 burden hours
annually and an aggregated cost of $71,520 per annum (30 respondents x
$2,384).
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\118\ For purposes of these estimates, the Commission staff
treats each quarterly review by an FCM as a single response.
---------------------------------------------------------------------------
The Commission notes that while certain other provisions of the
proposed regulation may result in recordkeeping requirements, the
Commission anticipates that any burden associated with these
requirements is likely to be de minimis and therefore does not expect
these provisions to increase the recordkeeping burden for FCMs.\119\
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\119\ See, e.g., 17 CFR 1.32 (setting forth requirements for
computation of customer segregated accounts); 17 CFR 1.73(a)(4)
(requiring clearing FCMs to conduct stress tests in each customer
account that could pose material risk to the FCM); 17 CFR
22.7(f)(6)(iii) (requirement to maintain residual interest); 17 CFR
1.22 & 22.7 (requirements to compute margin deficiencies).
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The aggregate information collection burden estimate associated
with the proposed reporting requirements is as follows: \120\
---------------------------------------------------------------------------
\120\ This estimate reflects the aggregate information
collection burden estimates associated with the proposed disclosure
requirements for the first annual period following implementation of
the proposed regulation. Because, as noted above, proposed
regulation Sec. 39.13(j)(12)(ii) would result in a one-time
recordkeeping requirement as to each customer (i.e., once the
disclosure is provided to existing customers, it would need to be
provided only to new customers on a going forward basis), the
Commission staff estimates that for each subsequent annual period
the number of reports, burden hours, and burden cost would be
reduced accordingly.
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Estimated number of respondents: 30.
Estimated number of reports: 36,120.
Estimated annual hours burden: 20,280.
Estimated annual cost: $1,457,520.
2. Information Collection Comments
The Commission invites the public and other Federal agencies to
comment on any aspect of the proposed information collection
requirements discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the
Commission will consider public comments on this proposed collection of
information regarding:
Evaluating whether the proposed collection of information
is necessary for the proper performance of the functions of the
Commission, including whether the information will have a practical
use;
Evaluating the accuracy of the estimated burden of the
proposed collection of information, including the degree to which the
methodology and the assumptions that the Commission employed were
valid;
Enhancing the quality, utility, and clarity of the
information proposed to be collected; and
Reducing the burden of the proposed information collection
requirements on registered entities, including through the use of
appropriate automated, electronic, mechanical, or other technological
information collection techniques; e.g., permitting electronic
submission of responses.
Organizations and individuals desiring to submit comments on the
proposed information collection requirements should send those comments
to:
The Office of Information and Regulatory Affairs, Office
of Management and Budget, Room 10235, New Executive Office Building,
Washington, DC 20503, Attn: Desk Officer of the Commodity Futures
Trading Commission;
(202) 395-6566 (fax); or
[email protected] (email).
Please provide the Commission with a copy of submitted comments so
that, if the Commission determines to promulgate a final rule, all such
comments can be summarized and addressed in the final rule preamble.
Refer to the ADDRESSES section of this notice of proposed rulemaking
for comment submission instructions to the Commission. A copy of the
supporting statements for the collections of information discussed
above may be obtained by visiting RegInfo.gov. OMB is required to make
a decision concerning the collection of information between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment is best assured of receiving full consideration if
OMB receives it within 30 days of publication of this notice of
proposed rulemaking. Nothing in the foregoing affects the deadline
enumerated above for public comment to the Commission on the proposed
rules.
List of Subjects in 17 CFR Part 39
Clearing, Clearing Organizations, Commodity Futures, Consumer
Protection.
For the reasons set forth in the preamble, the Commodity Futures
Trading Commission proposes to amend 17 CFR part 39 as follows:
PART 39--DERIVATIVES CLEARING ORGANIZATIONS
0
1. The authority citation for part 39 continues to read as follows:
Authority: 7 U.S.C. 2, 6(c), 7a-1, and 12a(5); 12 U.S.C. 5464;
15 U.S.C. 8325; Section 752 of the Dodd-Frank Wall Street Reform and
Consumer Protection Act, Pub. L. 111-203, title VII, sec. 752, July
21, 2010, 124 Stat. 1749.
0
2. In Sec. 39.13, add paragraph (j) to read as follows:
Sec. 39.13 Risk management.
* * * * *
(j) Separate account treatment with respect to withdrawal of
customer initial margin. For purposes of paragraph (g)(8)(iii) of this
section, a derivatives clearing organization may permit a clearing
member that is a futures commission merchant to treat the separate
accounts of a customer as accounts of separate entities if such
clearing member's written internal controls and procedures permit it to
do so, and the derivatives clearing organization requires such clearing
member to comply with the following conditions with respect to such
separate accounts:
(1) The clearing member permits disbursements on a separate account
basis only during the ordinary course of business.
(i) For purposes of this paragraph (j), ``separate account'' means
any one of multiple accounts of the same customer that are carried by
the same futures commission merchant that is a clearing member of a
derivatives clearing organization.
(ii) For purposes of this paragraph (j), ``ordinary course of
business'' means the standard day-to-day operation of the clearing
member's business relationship with its customer. The following events
are inconsistent with the ordinary course of business and would require
the clearing member to cease permitting disbursements on a separate
account basis with respect to all accounts of the relevant customer
receiving separate account treatment, where such event occurs with
respect to a customer as described in paragraphs (j)(1)(ii)(A) through
(F) of this section, or with respect to all customer accounts receiving
separate account treatment, where such event occurs with respect to the
clearing member as described in paragraphs (j)(1)(ii)(G) through (I) of
this section.
(A) Such customer, including any separate account of such customer,
fails to deposit or maintain initial or maintenance margin or make
payment of variation margin or option premium as specified in paragraph
(j)(4) of this section.
(B) The occurrence and declaration by the clearing member of an
event of default as defined in the account documentation executed
between the clearing member and the customer.
(C) A good faith determination by the clearing member's chief
compliance officer, one of its senior risk managers, or other senior
manager, following such
[[Page 22953]]
clearing member's own internal escalation procedures, that the customer
is in financial distress, or there is significant and bona fide risk
that the customer will be unable promptly to perform its financial
obligations to the clearing member, whether due to operational reasons
or otherwise.
(D) The insolvency or bankruptcy of the customer or a parent
company of the customer.
(E) The clearing member receives notification that a board of
trade, a derivatives clearing organization, a self-regulatory
organization as defined in section 1.3 of this chapter or section
3(a)(26) of the Securities Exchange Act of 1934, the Commission, or
another regulator with jurisdiction over the customer, has initiated an
action with respect to the customer based on an allegation that the
customer is in financial distress.
(F) The clearing member is directed to cease permitting
disbursements on a separate account basis, with respect to one or more
customers, by a board of trade, a derivatives clearing organization, a
self-regulatory organization, the Commission, or another regulator with
jurisdiction over the clearing member, pursuant to, as applicable,
board of trade, derivatives clearing organization or self-regulatory
organization rules, government regulations, or law.
(G) The clearing member is notified by a board of trade, a
derivatives clearing organization, a self-regulatory organization, the
Commission, or another regulator with jurisdiction over the clearing
member, that the board of trade, the derivatives clearing organization,
the self-regulatory organization, the Commission, or other regulator,
as applicable, believes the clearing member is in financial or other
distress.
(H) The clearing member is under financial or other distress as
determined in good faith by its chief compliance officer, senior risk
managers, or other senior management.
(I) The bankruptcy of the clearing member or a parent company of
the clearing member.
(iii) The clearing member must communicate to its designated self-
regulatory organization and any derivatives clearing organization of
which it is a clearing member the occurrence of any one of the events
enumerated in paragraphs (j)(1)(ii)(A) through (I) of this section.
Such communication must be made promptly in writing, and in any case no
later than the next business day following the date on which the
clearing member identifies or has been informed that such event has
occurred.
(iv) A clearing member that has ceased permitting disbursements on
a separate account basis pursuant to paragraph (j)(1)(ii) of this
section may resume permitting disbursements on a separate account basis
if such clearing member reasonably believes, based on new information,
that the circumstances triggering cessation of separate account
treatment pursuant to paragraphs (j)(1)(ii)(A) through (I) of this
section have been cured, and such clearing member provides in writing
to its designated self-regulatory organization and any derivatives
clearing organization of which it is a clearing member a notification
that it will resume separate account treatment, and the factual basis
and rationale for its conclusion that the circumstances triggering
cessation of separate account treatment pursuant to paragraphs
(j)(1)(ii)(A) through (I) of this section have been cured. If the
circumstances triggering cessation of separate account treatment were
an action or direction by one of the entities described in paragraphs
(j)(1)(ii)(E) through (G) of this section, then the cure of those
circumstances would require the withdrawal or other appropriate
termination of such action or direction by that entity.
(2) The clearing member obtains from the customer or, as
applicable, the manager of a separate account, information sufficient
for the clearing member to:
(i) Assess the value of the assets dedicated to such separate
account; and
(ii) Identify the direct or indirect parent company of the
customer, as applicable, if such customer has a direct or indirect
parent company.
(3) The clearing member's internal risk management policies and
procedures must provide for stress testing and credit limits for
customers with separate accounts. This stress testing must be
performed, and the credit limits must be applied, both on an individual
separate account and on a combined account basis.
(4) Each separate account must be on a ``one business day margin
call.'' The following requirements apply solely for purposes of this
paragraph (j)(4):
(i) Except as explicitly provided in this paragraph (j)(4), if the
margin call is issued by 11:00 a.m. Eastern Time on a United States
business day, it must be met by the applicable customer no later than
the close of the Fedwire Funds Service on the same United States
business day. In no case can a clearing member contractually agree to
delay issuing such a margin call until after 11:00 a.m. Eastern Time on
any given United States business day or to otherwise engage in
practices that are intended to circumvent this paragraph (j)(4) by
causing such delay.
(ii) Payment of margin in Japanese Yen shall be considered in
compliance with the requirements of this paragraph (j)(4) if received
by the applicable clearing member by 12:00 p.m., Eastern Time, on the
second United States business day after the business day on which the
margin call is issued.
(iii) Payment of margin in fiat currencies other than U.S. Dollars,
Canadian Dollars, or Japanese Yen shall be considered in compliance
with the requirements of this paragraph (j)(4) if received by the
applicable clearing member by 12:00 p.m., Eastern Time, on the United
States business day after the business day on which the margin call is
issued.
(iv) The relevant deadline for payment of margin in fiat currencies
other than U.S. Dollars may be extended by up to one additional United
States business day and still be considered in compliance with the
requirements of this paragraph (j)(4) if payment is delayed due to a
banking holiday in the jurisdiction of issue of the currency. For
payments in Euro, either the customer or the investment manager
managing the separate account may designate one country within the
Eurozone that they have the most significant contacts with for purposes
of meeting margin calls, whose banking holidays shall be referred to
for this purpose.
(v) A failure to deposit, maintain, or pay margin or option premium
due to unusual administrative error or operational constraints that a
customer or investment manager acting diligently and in good faith
could not have reasonably foreseen does not constitute a failure to
comply with the requirements of this paragraph (j)(4). For these
purposes, a clearing member's determination that the failure to
deposit, maintain, or pay margin or option premium is due to such
administrative error or operational constraints must be based on the
clearing member's reasonable belief in light of information known to
the clearing member at the time the clearing member learns of the
relevant administrative error or operational constraint.
(vi) A clearing member would not be in compliance with the
requirements of this paragraph (j)(4) if it contractually agrees to
provide customers with periods of time to meet margin calls that extend
beyond the time periods specified in paragraphs (j)(4)(i) through (v)
of this section, or engages in
[[Page 22954]]
practices that are designed to circumvent this paragraph (j)(4).
(vii) For purposes of this paragraph (j)(4), ``United States
business day'' means weekdays not including Federal holidays as
established by 5 U.S.C. 6103. A margin call issued after 11:00 a.m.
Eastern Time on a United States business day, or on a Saturday, Sunday,
or a Federal holiday, shall be considered to have been issued before
11:00 a.m. Eastern Time on the next day that is a United States
business day.
(5) The margin requirement for each separate account is calculated
independently from all other separate accounts of the same customer
with no offsets or spreads recognized across the separate accounts. A
clearing member is required to treat each separate account of a
customer independently from all other separate accounts of the same
customer for purposes of computing capital charges for under-margined
customer accounts in determining its adjusted net capital under Sec.
1.17 of this chapter.
(6) The clearing member must record each separate account
independently in its books and records (i.e., the clearing member must
record the balance of each separate account as a receivable (debit or
deficit) or payable with no offsets between the other separate accounts
of the same customer). A clearing member is required to treat each
separate account of a customer independently from all other separate
accounts of the same customer for purposes of determining whether a
receivable from a separate account that represents a deficit or debit
ledger balance may be included in the clearing member's current assets
in computing its adjusted net capital under Sec. 1.17(c)(2) of this
chapter.
(7) A customer receivable for a debit or deficit from a separate
account must only be considered a current or allowable asset for
purposes of Sec. 1.17(c)(2) of this chapter based on the assets of
that separate account, and not on the assets held in another separate
account of the same customer.
(8) In calculating the amount of its own funds the clearing member
must use to cover debit or deficit balances pursuant to Sec. 1.20(i)
or Sec. 22.2(f) of this chapter, the clearing member must include any
debit or deficit of any separate account, and must reflect that
calculation in each applicable report.
(9) The clearing member must include the margin deficiency of each
separate account, and cover such deficiency with its own funds, as
applicable, for purposes of its residual interest and legally
segregated operationally commingled compliance calculations, as
applicable under Sec. 1.22, Sec. 22.2, and 30.7 of this chapter.
(10) In determining its residual interest target for purposes of
Sec. 1.23(c) of this chapter, the clearing member must calculate
customer receivables computed on a separate account basis.
(11) Where the customer of separate accounts subject to separate
treatment pursuant to this paragraph (j) has appointed a third-party as
the primary contact to the clearing member, the clearing member must
obtain and maintain current contact information of an authorized
representative(s) at the customer, and take reasonable steps to verify
that such contact information is accurate and that person is in fact an
authorized representative of the customer. The clearing member must
review and, as applicable, update such contact information no less than
annually.
(12) The clearing member must provide each customer using separate
accounts with a disclosure that, pursuant to part 190 of this chapter,
all separate accounts of the customer in each account class will be
combined in the event of the clearing member's bankruptcy.
(i) The disclosure statement required by this paragraph (j)(12)
must be delivered separately to the customer via electronic means in
writing or in such other manner as the clearing member customarily
delivers disclosures pursuant to applicable Commission regulations, and
as permissible under the clearing member's customer documentation.
(ii) The clearing member must maintain documentation demonstrating
that the disclosure statement required by this paragraph (j)(12) was
delivered directly to the customer.
(iii) The clearing member must include the disclosure statement
required by this paragraph (j)(12) on its website or within its
Disclosure Document required by Sec. 1.55(i) of this chapter.
(13) The clearing member must disclose in the Disclosure Document
required under Sec. 1.55(i) of this chapter that it permits the
separate treatment of accounts for the same customer under the terms
and conditions of this paragraph (j).
(14) To the extent the clearing member treats the separate accounts
of a customer as accounts of separate entities, pursuant to the terms
of this paragraph (j), the clearing member must:
(i) Apply such treatment in a consistent manner over time;
(ii) Provide a one-time notification (i.e., once such a
notification is made, the clearing member is not required to repeat it)
to its designated self-regulatory organization and any derivatives
clearing organization of which it is a clearing member that it will
apply such treatment to one or more customers; and
(iii) Maintain and keep current a list of all separate accounts
receiving such treatment. The clearing member must conduct a review of
its records of accounts receiving separate treatment no less than
quarterly.
* * * * *
Issued in Washington, DC, on March 22, 2023 by the Commission.
Robert Sidman,
Deputy Secretary of the Commission.
Note: The following appendices will not appear in the Code of
Federal Regulations.
Appendices to Derivatives Clearing Organization Risk Management
Regulations To Account for the Treatment of Separate Accounts by
Futures Commission Merchants--Voting Summary and Commissioner's
Statement
Appendix 1--Voting Summary
On this matter, Chairman Behnam and Commissioners Johnson,
Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No
Commissioner voted in the negative.
Appendix 2--Statement of Commissioner Kristin N. Johnson
I support the issuance by the Commodity Futures Trading
Commission (CFTC) of the Notice of Proposed Amendments to
Derivatives Clearing Organization (DCO) Risk Management Regulations
to Account for the Treatment of Separate Accounts by Futures
Commission Merchants (FCMs) (the ``NPRM'').
The proposed amendments codify a no-action position issued by
the CFTC's Division of Clearing and Risk (DCR) and Market
Participants Division (MPD) that imposed certain conditions on FCM's
ability to treat accounts owned by a single customer as separate
accounts.\1\ These conditions aim to protect customer assets and
avoid systemic risk.\2\ I write today to underscore the
[[Page 22955]]
significance of these protections for customer assets.
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\1\ Advisory and Time-Limited No-Action Relief with Respect to
the Treatment of Separate Accounts by Futures Commission Merchants,
CFTC Letter No. 19-17, July 10, 2019, https://www.cftc.gov/csl/19-17/download.
\2\ These conditions aim to ensure that FCMs ``(i) carry out
such separate account treatment in a consistent and documented
manner; (ii) monitor customer accounts on a separate and combined
basis; (iii) identify and act upon instances of financial or
operational distress that necessitate a cessation of separate
account treatment; (iv) provide appropriate disclosures to customers
regarding separate account treatment; and (v) apprise their DSROs
when they apply separate account treatment or an event has occurred
that would necessitate cessation of separate account treatment.''
NPRM at Section II.A.
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Segregating or separating a firm's proprietary funds from
customer funds is a critical element in protecting not only
customers, but also the broader financial system. In the absence of
the proposed risk management conditions and robust compliance with
the same, conditions of financial distress could lead to preventable
losses for customers or FCMs.\3\
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\3\ Id. (discussing Proposed Regulation Sec. 39.13(j)(1)).
[FR Doc. 2023-06248 Filed 4-13-23; 8:45 am]
BILLING CODE 6351-01-P