2011-690

Federal Register, Volume 76 Issue 13 (Thursday, January 20, 2011)[Federal Register Volume 76, Number 13 (Thursday, January 20, 2011)]

[Proposed Rules]

[Pages 3698-3742]

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

[FR Doc No: 2011-690]

[[Page 3697]]

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Part II

Commodity Futures Trading Commission

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17 CFR Part 39

Risk Management Requirements for Derivatives Clearing Organizations;

Proposed Rule

Federal Register / Vol. 76 , No. 13 / Thursday, January 20, 2011 /

Proposed Rules

[[Page 3698]]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 39

RIN 3038-AC98

Risk Management Requirements for Derivatives Clearing

Organizations

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (Commission) is

proposing regulations to implement Title VII and Title VIII of the

Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank

Act). Proposed regulations would establish the regulatory standards for

compliance with derivatives clearing organization (DCO) Core Principles

C (Participant and Product Eligibility), D (Risk Management), E

(Settlement Procedures), F (Treatment of Funds), G (Default Rules and

Procedures), and I (System Safeguards). For DCOs that are designated by

the Financial Stability Oversight Council as systemically important

DCOs (SIDCOs), the Commission is proposing heightened standards in the

area of system safeguards supporting business continuity and disaster

recovery and a provision that would implement the Commission's special

enforcement authority over SIDCOs. The Commission also is proposing

certain additional amendments including replacement of the current part

39 appendix A, Application Guidance and Compliance With Core

Principles, with an application form for entities seeking to register

as DCOs, technical amendments to reorganize part 39 of the Commission's

regulations, and amendments to supplement reporting and public

information requirements proposed in a previous rulemaking.

DATES: Submit comments on or before March 21, 2011.

ADDRESSES: You may submit comments, identified by RIN number, by any of

the following methods:

Agency Web site, via its Comments Online process: http://comments.cftc.gov. Follow the instructions for submitting comments

through the Web site.

Mail: David A. Stawick, Secretary of the Commission,

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

Street, NW., Washington, DC 20581.

Hand Delivery/Courier: Same as mail above.

Federal eRulemaking Portal: http://www.Regulations.gov.

Follow the instructions for submitting comments.

Please submit comments by only one method.

All comments must be submitted in English, or if not, accompanied

by an English translation. Comments will be posted as received to

http://www.cftc.gov. You should submit only information that you wish

to make available publicly. If you wish the Commission to consider

information that may be exempt from disclosure under the Freedom of

Information Act (FOIA), 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.\1\ 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 http://www.cftc.gov that it may deem to be

inappropriate for publication, such as obscene language. All

submissions that have been redacted or removed that contain comments on

the merits of the rulemaking will be retained in the public comment

file and will be considered as required under the Administrative

Procedure Act and other applicable laws, and may be accessible under

FOIA.

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\1\ Commission regulations referred to herein are found at 17

CFR Ch. 1 (2010). They are accessible on the Commission's Web site

at http://www.cftc.gov.

FOR FURTHER INFORMATION CONTACT: John C. Lawton, Deputy Director, 202-

418-5480, [email protected]; Phyllis P. Dietz, Associate Director, 202-

418-5449, [email protected], Robert B. Wasserman, Associate Director,

202-418-5092, [email protected] (System Safeguards); and Jonathan

Lave, Special Counsel, 202-418-5983, [email protected], Division of

Clearing and Intermediary Oversight, Commodity Futures Trading

Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington,

DC 20581; and Julie A. Mohr, Associate Director, 312-596-0568,

[email protected]; and Anne C. Polaski, Special Counsel, 312-596-0575,

[email protected], Division of Clearing and Intermediary Oversight,

Commodity Futures Trading Commission, 525 West Monroe Street, Chicago,

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Illinois 60661.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Title VII of the Dodd-Frank Act

B. Title VIII of the Dodd-Frank Act

C. Dodd-Frank Act rulemaking initiative

II. Discussion

A. Registration procedures

B. Implementation of DCO core principles

1. Participant and product eligibility

(a) Participant eligibility

(i) Fair and open access

(ii) Financial resources

(iii) Operational requirements

(iv) Monitoring, reporting, and enforcement

(b) Product eligibility

2. Risk management

(a) General

(b) Risk management framework

(c) Chief risk officer

(d) Measurement of credit exposure

(e) Limitation of exposure to potential losses from defaults

(f) Margin requirements

(i) General

(ii) Methodology and coverage

(iii) Independent validation

(iv) Spread margins

(v) Price data

(vi) Daily review and back tests

(vii) Customer margin

(1) Gross margin for customer accounts

(2) Customer initial margin requirements

(3) Withdrawal of customer initial margin

(viii) Time deadlines

(g) Other risk control mechanisms

(i) Risk limits

(ii) Large trader reports

(iii) Stress tests

(iv) Portfolio compression

(v) Clearing members' risk management policies and procedures

(vi) Additional authority

3. Settlement procedures

(a) Daily settlements

(b) Settlement banks

(c) Settlement finality

(d) Recordkeeping

(e) Netting arrangements

(f) Physical delivery

4. Treatment of funds

(a) Required standards and procedures

(b) Segregation of funds and assets

(c) Holding of funds and assets

(i) Types of assets

(ii) Valuation

(iii) Haircuts

(iv) Concentration limits

(v) Pledged assets

(d) Permissible investments

5. Default rules and procedures

(a) General

(b) Default management plan

(c) Default procedures

(d) Insolvency of a clearing member

6. System safeguards

(a) General

(i) Definitions

(ii) Program of risk analysis

(iii) Elements of program

(iv) Standards for program

(v) Business continuity and disaster recovery

(vi) Location of resources; outsourcing

(vii) Notification of Commission staff; recordkeeping

(viii) Testing

(ix) Coordination of business continuity and disaster recovery

plan

(b) SIDCOs

(i) Determining which DCOs will be subject to enhanced BC-DR

obligations

[[Page 3699]]

(ii) Recovery time objective

(iii) Geographic diversity

(iv) Testing

(v) Effective date

7. Special enforcement authority over SIDCOs

C. Additional amendments

1. Technical amendments to reorganize part 39

2. Supplemental provisions for proposed Sec. 39.19

3. Technical amendments to proposed Sec. 39.21

III. Effective Date

IV. Section 4(c)

V. Related Matters

A. Regulatory Flexibility Act

B. Paperwork Reduction Act

C. Cost-benefit analysis

I. Background

A. Title VII of the Dodd-Frank Act

On July 21, 2010, President Obama signed the Dodd-Frank Act.\2\

Title VII of the Dodd-Frank Act \3\ amended the Commodity Exchange Act

(CEA) \4\ to establish a comprehensive regulatory framework to reduce

risk, increase transparency, and promote market integrity within the

financial system by, among other things: (1) Providing for the

registration and comprehensive regulation of swap dealers and major

swap participants; (2) imposing clearing and trade execution

requirements on standardized derivative products; (3) creating rigorous

recordkeeping and real-time reporting regimes; and (4) enhancing the

Commission's rulemaking and enforcement authorities with respect to all

registered entities and intermediaries subject to the Commission's

oversight.

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\2\ See Dodd-Frank Wall Street Reform and Consumer Protection

Act, Pub. L. 111-203, 124 Stat. 1376 (2010). The text of the Dodd-

Frank Act may be accessed at http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm.

\3\ Pursuant to section 701 of the Dodd-Frank Act, Title VII may

be cited as the ``Wall Street Transparency and Accountability Act of

2010.''

\4\ 7 U.S.C. 1 et seq.

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Section 725(c) of the Dodd-Frank Act amended Section 5b(c)(2) of

the CEA, which sets forth core principles with which a DCO must comply

to be registered and to maintain registration as a DCO.

The core principles were added to the CEA by the Commodity Futures

Modernization Act of 2000 (CFMA).\5\ The Commission did not adopt

implementing rules and regulations, but instead promulgated guidance

for DCOs on compliance with the core principles.\6\ Under section

5b(c)(2), as amended by the Dodd-Frank Act, Congress expressly

confirmed that the Commission may adopt implementing rules and

regulations pursuant to its rulemaking authority under section 8a(5) of

the CEA.\7\

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\5\ See Commodity Futures Modernization Act of 2000, Pub. L.

106-554, 114 Stat. 2763 (2000).

\6\ See 17 CFR part 39, app. A.

\7\ Section 8a(5) of the CEA authorizes the Commission to

promulgate such regulations ``as, in the judgment of the Commission,

are reasonably necessary to effectuate any of the provisions or to

accomplish any of the purposes of [the CEA].'' 7 U.S.C. 12a(5).

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The Commission continues to believe that each DCO should be

afforded an appropriate level of discretion in determining how to

operate its business within the statutory framework. At the same time,

the Commission recognizes that specific, bright-line regulations may be

necessary in order to facilitate DCO compliance with a given core

principle and, ultimately, to protect the integrity of the U.S.

clearing system. Accordingly, in developing the proposed regulations,

the Commission has endeavored to strike an appropriate balance between

establishing general prudential standards and prescriptive

requirements.

In this notice of proposed rulemaking, the Commission proposes to

adopt regulations to implement six DCO core principles. Those core

principles, all of which were amended by the Dodd-Frank Act, are C

(Participant and Product Eligibility), D (Risk Management), E

(Settlement Procedures), F (Treatment of Funds), G (Default Rules and

Procedures), and I (System Safeguards).

B. Title VIII of the Dodd-Frank Act

Section 802(b) of the Dodd-Frank Act states that the purpose of

Title VIII is to mitigate systemic risk in the financial system and

promote financial stability. Section 804 authorizes the Financial

Stability Oversight Council (Council) to designate entities involved in

clearing and settlement as systemically important.\8\

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\8\ See Advance Notice of Proposed Rulemaking Regarding

Authority to Designate Financial Market Utilities as Systemically

Important, available at http://www.treasury.gov/initiatives/Pages/FSOC-index.aspx.

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Section 805(a) of the Dodd-Frank Act allows the Commission to

prescribe regulations for those DCOs that the Council has determined

are systemically important. The Commission is proposing to adopt

enhanced requirements for SIDCOs regarding system safeguards for

business continuity and disaster recovery in proposed Sec. 39.30.

Section 807(c) of the Dodd-Frank Act provides the Commission with

special enforcement authority over SIDCOs, which the Commission is

proposing to implement in proposed Sec. 39.31.

C. Dodd-Frank Act Rulemaking Initiative

This proposed rulemaking is the last in a series of proposed

rulemakings issued for the purpose of implementing the DCO core

principles.\9\ Through the proposed regulations, the Commission seeks

to enhance legal certainty for DCOs, clearing members, and market

participants by providing a regulatory framework to support DCO risk

management practices overall and, in turn, strengthen the financial

integrity of the futures markets and swap markets subject to Commission

oversight.

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\9\ See e.g., 75 FR 78185 (Dec. 15, 2010) (Core Principles J,

Reporting; K, Recordkeeping; L, Public Information; and M,

Information Sharing); 75 FR 77576 (Dec. 13, 2010) (Core Principles

A, Compliance; H, Rule Enforcement; N, Antitrust Considerations; and

R, Legal Risk); 75 FR 63732 (Oct. 18, 2010) (Core Principle P,

Conflicts of Interest); and 75 FR 63113 (Oct. 14, 2010) (Core

Principle B, Financial Resources).

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With this in mind, the Commission also is proposing to establish

greater uniformity and transparency in the DCO application process by

adopting a registration application form that will facilitate greater

efficiency and consistency in processing submissions. The Commission is

further proposing certain technical amendments to update and conform

provisions of part 39 to the CEA, as amended by the Dodd-Frank Act.

The Commission requests comment on all aspects of the rules

proposed herein, as well as comment on the specific provisions and

issues highlighted in the discussion below.

II. Discussion

A. Registration Procedures

As proposed in an earlier notice of proposed rulemaking, the

Commission intends to continue to voluntarily apply a 180-day time

frame for review of DCO registration applications, but eliminate the

90-day expedited review period for such applications.\10\ Related to

this, the Commission is now proposing additional revisions to the

requirements for DCO registration in order to clarify the application

submission and review process and to achieve greater efficiency for

both applicants and the Commission.

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\10\ See 75 FR at 77586. Although the CEA does not require the

Commission to review DCO applications within a prescribed time

period or subject to any prescribed procedures, the Commission

adopted a 90-day expedited review period and, in the alternative,

the 180-day time period and procedures specified in section 6(a) of

the CEA for review of applications for designation of a contract

market.

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The Commission is proposing to revise appendix A to part 39,

``Application Guidance and Compliance With Core Principles,'' by

removing the current content and substituting in its

[[Page 3700]]

place Form DCO, which would be comprised of two parts: (i) An

application cover sheet for basic information about the DCO applicant,

its ownership structure, officers, and application contact information,

and (ii) instructions for a series of accompanying exhibits that would

contain information demonstrating compliance with each of the DCO core

principles. An application for DCO registration would consist of the

completed Form DCO, including all applicable exhibits, and any

supplemental information submitted to the Commission.\11\

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\11\ In separate rulemakings, the Commission is proposing

applications for designation as a contract market and registration

as a swap execution facility. This approach is similar to the SEC's

use of the Form CA for securities clearing agency applications,

available at https://www.sec.gov.

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The Commission's objective in adopting an application form is to

streamline the DCO registration process, having learned from experience

that the general guidance contained in the current appendix A does not

provide sufficiently specific instructions to applicants. As a result,

the registration process has been prolonged in some cases because of

the need for Commission staff to provide applicants with additional

guidance about the nature of the information that is required in order

for the Commission to conclude that the applicant has demonstrated its

ability to comply with the core principles.

The Commission proposes to amend Sec. 39.3(d), ``Guidance for

applicants and registrants,'' and redesignate it as Sec. 39.3(a)(2).

The amended provision would state that any person seeking to register

as a DCO would be required to submit a completed Form DCO as provided

in appendix A to part 39, including all applicable exhibits. Use of the

Form DCO also would be required for amendments to a pending application

or requests for an amendment to an existing DCO registration. Section

39.3(a)(2) would clarify that an applicant, upon its own initiative,

could file additional information that might be necessary or helpful to

the Commission in processing the application. The Commission strongly

encourages prospective applicants to submit any additional information

that could be useful to the Commission.

The proposed appendix A containing the Form DCO is set forth in

this notice of proposed rulemaking. The Commission requests comment on

the potential benefits and disadvantages of requiring the use of a

standardized application. In addition, the Commission requests comment

on the content of the proposed application including specific exhibits.

Proposed Sec. 39.3(a)(3) would clarify that the filing of a

completed Form DCO would be a minimum requirement and would not create

a presumption that the application is materially complete \12\ or that

supplemental information will not be required by the Commission. At any

time during the application review process, the Commission may request

that the applicant submit supplemental information in order for the

Commission to process the application.

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\12\ Section 6(a) of the CEA, 7 U.S.C. 8(a), provides that the

Commission must approve or deny an application for designation of a

contract market within 180 days of the filing of the application.

However, ``[i]f the Commission notifies the person that its

application is materially incomplete and specifies the deficiencies

in the application, the running of the 180-day period shall be

stayed from the time of such notification until the application is

resubmitted in completed form.''

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Under proposed Sec. 39.3(a)(4), an applicant would be required to

promptly amend its Form DCO if it discovered a material omission or

error, or if there is a material change in any information already

provided to the Commission.

Proposed Sec. 39.3(a)(5) would largely incorporate applicable

language of Sec. 40.8(a), which identifies those parts of a DCO

application that are available to the public.\13\ Those parts are: the

first page of the cover sheet, proposed rules (Exhibit A-1), the

applicant's regulatory compliance chart (Exhibit A-2), a narrative

summary of the applicant's proposed clearing activities (Exhibit A-3),

documents establishing the applicant's legal status (Exhibit A-8),

documents setting forth the applicant's corporate and governance

structure (Exhibits A-7 and Q), and any other part of the application

not covered by a request for confidential treatment subject to FOIA and

filed in accordance with the requirements of Sec. 145.9 of the

Commission's regulations.\14\ The Commission notes that it expects to

continue its practice of posting DCO applications on its Web site for a

public comment period (typically 30 days).

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\13\ See 75 FR 67282 (Nov. 2, 2010) (provisions common to

registered entities).

\14\ See 5 U.S.C. 552 and Sec. 145.9 of the Commission's

regulations (regarding petitions for confidential treatment of

information submitted to the Commission).

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Proposed Sec. 39.3(b)(1) would stay the running of the 180-day

review period if an application was materially incomplete, consistent

with the Commission's authority with respect to the designation of a

contract market under section 6(a) of the CEA. The delegation provision

of current Sec. 39.3(g) would be redesignated as paragraph (b)(2).

This provision authorizes the Director of the Division of Clearing and

Intermediary Oversight or the Director's designee, with the concurrence

of the General Counsel or the General Counsel's designee, to notify an

applicant that the application is materially incomplete and the running

of the 180-day period is stayed.

The Commission requests comment on all aspects of the proposed

amendments to Sec. 39.3, including the costs associated with the

application process and possible means for streamlining the process

further.

B. Implementation of DCO Core Principles

1. Participant and Product Eligibility

Core Principle C, as amended by the Dodd-Frank Act,\15\ requires

each DCO to establish appropriate admission and continuing eligibility

standards for members of, and participants in, the DCO,\16\ including

sufficient financial resources and operational capacity to meet the

obligations arising from participation. Core Principle C further

requires that such participation and membership requirements be

objective, be publicly disclosed, and permit fair and open access. Core

Principle C also requires that each DCO establish and implement

procedures to verify compliance with each participation and membership

requirement, on an ongoing basis. With respect to product eligibility,

Core Principle C requires that each DCO establish appropriate standards

for determining the eligibility of agreements, contracts, or

transactions submitted to the DCO for clearing.\17\ The Commission is

proposing to adopt

[[Page 3701]]

Sec. 39.12 to establish requirements that a DCO would have to meet in

order to comply with Core Principle C.

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\15\ Section 5b(c)(2)(C) of the CEA; 7 U.S.C. 7a-1(c)(2)(C)

(Core Principle C).

\16\ Core Principle C, as well as the other core principles that

are discussed herein, refer to ``members of, and participants in'' a

DCO. The Commission interprets this phrase to mean persons with

clearing privileges, and has used the term ``clearing member'' in

describing the requirements of each core principle and in the text

of the proposed regulations described herein. In a separate notice

of proposed rulemaking, the Commission has proposed to amend the

definition of ``clearing member'' in Sec. 1.3(c) to mean ``any

person that has clearing privileges such that it can process, clear

and settle trades through a derivatives clearing organization on

behalf of itself or others. The derivatives clearing organization

need not be organized as a membership organization.'' See 75 FR at

77585.

\17\ Prior to amendment by the Dodd-Frank Act, Core Principle C

provided that

[t]he applicant shall establish--

(i) appropriate admission and continuing eligibility standards

(including appropriate minimum financial requirements) for members

of and participants in the organization; and

(ii) appropriate standards for determining eligibility of

agreements, contracts, or transactions submitted to the applicant.

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(a) Participant eligibility.

As noted above, Core Principle C requires that a DCO's admission

and continuing eligibility standards for clearing members must be

objective and publicly disclosed.\18\ Proposed Sec. 39.12(a) would

codify these requirements, and would make clear that such requirements

must be risk-based.

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\18\ Section 5b(c)(2)(C)(iii) of the CEA; 7 U.S.C. 7a-

1(c)(2)(C)(iii) (Core Principle C).

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(i) Fair and open access.

Core Principle C mandates that participation requirements must

``permit fair and open access.'' \19\ It also mandates that clearing

members must have ``sufficient financial resources and operational

capacity to meet obligations arising from participation in the

derivatives clearing organization.'' \20\ Although there is potential

for tension between these goals, the Commission believes that they can

be harmonized. Proposed Sec. 39.12 is designed to ensure that

participation requirements do not unreasonably restrict any entity from

becoming a clearing member while, at the same time, limiting risk to

the DCO and its clearing members. The Commission believes that more

widespread participation could reduce the concentration of clearing

member portfolios and diversify risk. It could also increase

competition by allowing more entities to become clearing members.

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\19\ Id.

\20\ Id.

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Proposed Sec. 39.12(a)(1) would require a DCO to establish

participation requirements that permit fair and open access. To achieve

fair and open access, proposed Sec. 39.12(a)(1)(i) would prohibit a

DCO from adopting a particular restrictive participation requirement if

it could adopt a less restrictive requirement that would not materially

increase risk to the DCO or its clearing members.

Proposed Sec. 39.12(a)(1)(ii) would require a DCO to permit a

market participant to become a clearing member if it met the DCO's

participation requirements. Proposed Sec. 39.12(a)(1)(iii) would

prohibit participation requirements that have the effect of excluding

or limiting clearing membership of certain types of market participants

unless the DCO can demonstrate that the restriction is necessary to

address credit risk or deficiencies in the participants' operational

capabilities that would prevent them from fulfilling their obligations

as clearing members. Section 39.12(a)(1)(iv) would prohibit a DCO from

requiring that clearing members must be swap dealers. Section

39.12(a)(1)(v) would prohibit a DCO from requiring that clearing

members maintain a swap portfolio of any particular size, or that

clearing members meet a swap transaction volume threshold.

The access and participation requirements discussed above meet or

exceed international recommendations.\21\

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\21\ In November 2004, the Task Force on Securities Settlement

Systems, jointly established by the Committee on Payment and

Settlement Systems (CPSS) of the central banks of the Group of Ten

countries and the Technical Committee of the International

Organization of Securities Commissions (IOSCO), issued

Recommendations for Central Counterparties. CPSS & Technical Comm.

of IOSCO Recommendations for Central Counterparties, CPSS Publ'n No.

64 (Nov. 2004), available at http://www.bis.org/publ/cpss64.pdf

(CPSS-IOSCO Recommendations). CPSS-IOSCO Recommendation 2 provides,

in part, that ``[a] CCP's participation requirements should be

objective, publicly disclosed, and permit fair and open access.''

The CPSS-IOSCO Recommendations further state that

[t]o avoid discriminating against classes of participants and

introducing competitive distortions, participation requirements

should be objective and avoid limiting competition through

unnecessarily restrictive criteria, thereby permitting fair and open

access within the scope of services offered by the CCP. [footnote

omitted] Participation requirements that limit access on grounds

other than risks should be avoided.

(CPSS-IOSCO Recommendations, pg. 16). The Commission notes that

CPSS and IOSCO are currently reviewing the CPSS-IOSCO

Recommendations, which may be revised.

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(ii) Financial resources.

Core Principle C mandates that participation requirements must

ensure that clearing members have ``sufficient financial resources and

operational capacity to meet obligations arising from participation in

the [DCO].'' \22\ Proposed Sec. 39.12(a)(2)(i) would require a DCO to

establish participation requirements that require clearing members to

have access to sufficient financial resources to meet obligations

arising from participation in the DCO in extreme but plausible market

conditions. The financial resources could include a clearing member's

capital, a guarantee from a clearing member's parent, or a credit

facility funding arrangement. The proposed regulation would further

specify that, for purposes of proposed Sec. 39.12(a)(2), ``capital''

would mean adjusted net capital as defined in Sec. 1.17 of the

Commission's regulations, for futures commission merchants (FCMs), and

net capital as defined in SEC rule 15c3-1, for broker-dealers, or any

similar risk adjusted capital calculation for all other prospective

clearing members.

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\22\ Section 5b(c)(2)(C)(i)(I) of the CEA; 7 U.S.C. 7a-

1(c)(2)(C)(i)(I).

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The Commission invites comment regarding whether a guarantee or a

credit facility funding arrangement is sufficiently reliable and liquid

such that it should be considered as a resource that would be available

to meet obligations arising from participation in a DCO in extreme but

plausible market conditions.

Proposed Sec. 39.12(a)(2)(ii) would require a DCO to establish

capital requirements that are based on objective, transparent, and

commonly accepted standards that appropriately match capital to risk.

The proposed regulation would require capital requirements to be

scalable so that they are proportional to the risks posed by clearing

members.

With respect to persons that seek clearing membership in order to

clear swaps, proposed Sec. 39.12(a)(2)(iii) would specify that a DCO

is not permitted to set a minimum capital requirement of more than $50

million.

If the capital requirement is satisfied by a prospective clearing

member, the DCO is prohibited from making a determination that the

prospective clearing member does not satisfy its scalable capital

requirements. Proposed Sec. Sec. 39.12(a)(2)(ii) and 39.12(a)(2)(iii),

considered together, would require a DCO to admit any person to

clearing membership for the purpose of clearing swaps, if the person

had $50 million in capital, but would permit a DCO to require each

clearing member to hold capital proportional to its risk exposure.\23\

Thus, if a clearing member's risk exposure were to increase in a non-

linear manner, the DCO could increase the clearing member's

corresponding scalable capital requirement in a non-linear manner.

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\23\ Conversely, as discussed, infra, in section II.B.2.g.i,

proposed Sec. 39.13(h)(1)(i) would require a DCO to impose risk

limits on a clearing member to prevent a clearing member from

carrying positions where the risk exposure of those positions

exceeded a threshold specified by the DCO relative to the financial

resources of the clearing member, the DCO, or both.

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The Commission requests comment on whether establishing a capital

threshold is an effective approach to promoting fair and open access.

If it is, the Commission further requests views on whether the $50

million figure is an appropriate amount and, if not, what alternative

amount might be more appropriate.

(iii) Operational requirements.

Proposed Sec. 39.12(a)(3) would require a DCO to establish

participation requirements that ensure that clearing members have

adequate operational

[[Page 3702]]

capacity to meet obligations arising from participation in the DCO. The

requirements would have to include, at a minimum, the ability to

process expected volumes and values of transactions cleared by the

clearing member within required time frames, including at peak times

and on peak days; the ability to fulfill collateral, payment, and

delivery obligations imposed by the DCO; and the ability to participate

in default management activities under the rules of the DCO and in

accordance with Sec. 39.16 of the Commission's regulations.

(iv) Monitoring, reporting, and enforcement.

Strong participation requirements will not limit risk if clearing

members do not satisfy the requirements on an ongoing basis.

Accordingly, Core Principle C requires each DCO to ``establish and

implement procedures to verify, on an ongoing basis, the compliance of

each participation and membership requirement of the derivatives

clearing organization.'' \24\ Proposed Sec. 39.12(a)(4) would codify

this requirement.

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\24\ See section 5b(c)(2)(C)(ii) of the CEA; 7 U.S.C. 7a-

1(c)(2)(C)(ii). Based on context, the Commission interprets the

phrase ``compliance of each participation and membership

requirement'' to mean compliance ``with'' each participation and

membership requirement.

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A DCO cannot effectively monitor clearing members if it is not

adequately informed about their financial status. Proposed Sec.

39.12(a)(5) would address this concern. Specifically, proposed Sec.

39.12(a)(5)(i) would require a DCO to require all of its clearing

members, including non-FCMs, to file periodic financial reports with

the DCO that contain any financial information that the DCO determines

is necessary to assess whether participation requirements are met on an

ongoing basis. A DCO would have to require its clearing members that

are FCMs to file the financial reports that are specified in Sec. 1.10

of the Commission's regulations with the DCO. The proposed regulation

also would require a DCO to review these financial reports for risk

management purposes. Proposed Sec. 39.12(a)(5)(i) would further

require a DCO to require its clearing members that are not FCMs to make

the periodic financial reports that they file with the DCO available to

the Commission upon the Commission's request. Proposed Sec.

39.12(a)(5)(ii) would require a DCO to adopt rules that require a

clearing member to provide to the DCO, in a timely manner, information

that concerns any financial or business developments that could

materially affect the clearing member's ability to continue to comply

with participation requirements.

Finally, proposed Sec. 39.12(a)(6) would require a DCO to have the

ability to enforce compliance with its participation requirements. In

particular, the DCO would be required to establish procedures for the

suspension and orderly removal of clearing members that no longer meet

the DCO's participation requirements.

(b) Product eligibility.

Core Principle C requires each DCO to establish ``appropriate

standards for determining the eligibility of agreements, contracts, or

transactions submitted to the [DCO] for clearing.'' \25\ Proposed Sec.

39.12(b)(1) would require a DCO to establish appropriate requirements

for determining the eligibility of agreements, contracts, or

transactions submitted to the DCO for clearing, taking into account the

DCO's ability to manage the risks associated with such agreements,

contracts, or transactions. Factors to be considered in determining

product eligibility would include, but would not be limited to: (i)

trading volume; (ii) liquidity; (iii) availability of reliable prices;

(iv) ability of market participants to use portfolio compression \26\

with respect to a particular swap product; (v) ability of the DCO and

clearing members to gain access to the relevant market for purposes of

creating and liquidating positions; (vi) ability of the DCO to measure

risk for purposes of setting margin requirements; and (vii) operational

capacity of the DCO and clearing members to address any unique risk

characteristics of a product.

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\25\ Section 5b(c)(2)(C)(i)(II) of the CEA; 7 U.S.C. 7a-

1(c)(2)(C)(i)(II).

\26\ Portfolio compression is a mechanism by which superfluous

transactions among two or more counterparties are compressed,

terminated and replaced with a smaller number of transactions of

decreased notional principal value in an effort to reduce the risk,

cost, and inefficiency of maintaining unnecessary transactions on

the counterparties' books.

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Section 2(h)(1)(B) of the CEA requires a DCO to adopt rules

providing that all swaps with the same terms and conditions submitted

to the DCO for clearing are economically equivalent within the DCO and

may be offset with each other within the DCO. Section 2(h)(1)(B)

further requires a DCO to provide for non-discriminatory clearing of a

swap executed bilaterally or on or subject to the rules of an

unaffiliated designated contract market (DCM) or swap execution

facility (SEF). Proposed Sec. 39.12(b)(2) would codify these

requirements in the Commission's regulations.

Proposed Sec. 39.12(b)(3) would require a DCO to select contract

unit sizes that maximize liquidity, open access, and risk management.

To the extent appropriate to further these objectives, the proposed

regulation would require a DCO to select contract units for clearing

purposes that may be smaller than the contract units in which trades

submitted for clearing were executed. The contract unit size of a

particular swap executed bilaterally may reflect the immediate

circumstances of the two parties to the transaction. Once submitted for

clearing, it may be possible to split the trade into smaller units

without compromising the interests of the two original parties. Smaller

units can promote liquidity by permitting more parties to trade the

product, facilitate open access by permitting more clearing members to

clear the product, and aid risk management by enabling a DCO, in the

event of a default, to have more potential counterparties for

liquidation.

Finally, proposed Sec. 39.12(b)(4) would require each DCO that

clears swaps to have rules stating that upon acceptance of a swap by

the DCO for clearing, (i) the original swap is extinguished, (ii) it is

replaced by equal and opposite swaps between clearing members and the

DCO, (iii) all terms of the cleared swaps must conform to templates

established under DCO rules, and (iv) if a swap is cleared by a

clearing member on behalf of a customer, all terms of the swap, as

carried in the customer account on the books of the clearing member,

must conform to the terms of the cleared swap established under the

DCO's rules.

The purpose of this provision is to encourage the standardization

of swaps and to avoid any differences between the terms of a swap as

carried at the DCO level and as carried at the clearing member level.

Any such differences would raise both customer protection and systemic

risk concerns. From a customer protection standpoint, if the terms of

the swap at the customer level differ from those at the clearing level,

then the customer position cannot really be said to have been cleared.

If the customer position differs from the cleared position, the

customer may not receive the full transparency and liquidity benefits

of clearing. Similarly, from a systemic perspective, any differences

could diminish overall price discovery and liquidity. Standardizing the

terms of a swap upon clearing would facilitate trading and promote the

mitigation of risk for all participants in the swap markets.

Furthermore, standardization would support the requirement in section

2(h)(1)(B) of the CEA and proposed Sec. 39.12(b)(2) that a DCO must

adopt rules providing that all swaps with the same terms and conditions

submitted to the DCO are

[[Page 3703]]

economically equivalent within the DCO and may be offset with each

other.

2. Risk Management Requirements

Core Principle D, as amended by the Dodd-Frank Act,\27\ requires

each DCO to ensure that it possesses the ability to manage the risks

associated with discharging the responsibilities of the DCO through the

use of appropriate tools and procedures. It further requires each DCO

to measure its credit exposures to each clearing member not less than

once during each business day and to monitor each such exposure

periodically during the business day. Core Principle D also requires

each DCO to limit its exposure to potential losses from defaults by

clearing members, through margin requirements and other risk control

mechanisms, to ensure that its operations would not be disrupted and

that nondefaulting clearing members would not be exposed to losses that

nondefaulting clearing members cannot anticipate or control. Finally,

Core Principle D requires that the margin that the DCO requires from

each clearing member must be sufficient to cover potential exposures in

normal market conditions and that each model and parameter used in

setting such margin requirements must be risk-based and reviewed on a

regular basis.\28\ The Commission is proposing to adopt Sec. 39.13 to

establish requirements that a DCO would have to meet in order to comply

with Core Principle D.

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\27\ Section 5b(c)(2)(D) of the CEA; 7 U.S.C. 7a-1(c)(2)(D)

(Core Principle D).

\28\ Prior to amendment by the Dodd-Frank Act, Core Principle D

provided that ``[t]he applicant shall have the ability to manage the

risks associated with discharging the responsibilities of a

derivatives clearing organization through the use of appropriate

tools and procedures.''

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(a) General.

Proposed Sec. 39.13(a) would require a DCO to ensure that it

possesses the ability to manage the risks associated with discharging

its responsibilities through the use of appropriate tools and

procedures. The specific requirements that are addressed in the

remainder of proposed Sec. 39.13, in addition to margin requirements,

describe various tools and procedures that the Commission believes are

necessary to ensure that DCOs are able to effectively manage the risks

that are inherent in their roles as central counterparties. Many of

those requirements reflect the current practices of most or all DCOs,

and others may describe enhancements that would assist existing and new

DCOs in mitigating their risks as they assume new responsibilities in

connection with the clearing of swaps.

(b) Risk management framework.

Proposed Sec. 39.13(b) would require a DCO to establish and

maintain written policies, procedures, and controls, approved by its

Board of Directors, which establish an appropriate risk management

framework that, at a minimum, clearly identifies and documents the

range of risks to which the DCO is exposed, addresses the monitoring

and management of the entirety of those risks, and provides a mechanism

for internal audit. Those risks may include, but are not limited to,

legal risk, credit risk, liquidity risk, custody and investment risk,

concentration risk, default risk, operational risk, market risk, and

business risk. A DCO would be required to regularly review its risk

management framework and update it as necessary.

The Commission believes that a DCO should adopt a comprehensive and

documented risk management framework that addresses all of the various

types of risks to which it is exposed, including the manner in which

they may relate to each other. A DCO's risk management framework should

be subject to the approval of its Board of Directors, as the Board is

ultimately responsible for managing a DCO's risks. The Commission is

proposing to leave it to the discretion of each DCO to determine the

frequency with which it reviews its risk management framework as long

as it is reviewed on a regular basis.

(c) Chief risk officer.

Proposed Sec. 39.13(c) would require a DCO to have a chief risk

officer who would be responsible for the implementation of the risk

management framework and for making appropriate recommendations

regarding the DCO's risk management functions to the DCO's Risk

Management Committee or Board of Directors, as applicable. In a

separate rulemaking, the Commission has proposed to adopt Sec.

39.13(d) to require DCOs to have a Risk Management Committee with

defined composition requirements and specified minimum functions.\29\

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\29\ See 75 FR at 63750. In that proposed rulemaking, the

provisions relating to the Risk Management Committee were designated

as Sec. 39.13(g). In the final rulemaking, the provisions will be

redesignated as Sec. 39.13(d).

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DCOs generally have a chief risk officer or an individual who

performs such a function, and the Commission believes this is a ``best

practice.'' Although Core Principle D does not specifically require a

DCO to have a chief risk officer, the Commission believes that given

the importance of the risk management function, each DCO should have a

member of senior management who is responsible for overseeing the

implementation of the DCO's comprehensive risk management framework and

making appropriate recommendations regarding risk management issues to

the DCO's Risk Management Committee (for matters within its

jurisdiction) or directly to the Board.

The CEA, as amended by the Dodd-Frank Act, requires a DCO to have a

chief compliance officer with defined responsibilities.\30\ These

requirements have been addressed in a separate rulemaking.\31\ Given

the importance of the risk management function and the comprehensive

nature of the responsibilities of the chief compliance officer as

defined in the statute, the Commission expects that the chief risk

officer and the chief compliance officer would be two different

individuals.

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\30\ See section 5b(i) of the CEA; 7 U.S.C. 7a-1(i).

\31\ 75 FR at 77587.

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(d) Measurement of credit exposure.

Proposed Sec. 39.13(e) would require a DCO to measure and monitor

its credit exposures to its clearing members. The proposed regulation

uses the term ``credit exposure'' in order to be consistent with the

statutory language of Core Principle D. In this context, ``credit

exposure'' does not refer to an extension of credit by the DCO to a

clearing member. Rather, it refers to any amounts that a clearing

member would owe to a DCO if the clearing member were to default in its

obligations to the DCO. It includes both current exposures and

potential future exposures.

Specifically, Sec. 39.13(e) would require a DCO to: (1) Measure

its credit exposure to each clearing member and mark to market such

clearing member's open positions at least once each business day; and

(2) monitor its credit exposure to each clearing member periodically

during each business day. Proposed Sec. 39.13(e) goes hand in hand

with proposed Sec. 39.14(b), which addresses daily settlements based

on a DCO's measurement of its credit exposures to its clearing

members.\32\

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\32\ See infra section II.B.3.a of this notice.

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(e) Limitation of exposure to potential losses from defaults.

Proposed Sec. 39.13(f) would require a DCO, through margin

requirements and other risk control mechanisms, to limit its exposure

to potential losses from defaults by its clearing members to ensure

that: (1) Its operations would not be disrupted; and (2) nondefaulting

clearing members would not be exposed to losses that nondefaulting

clearing members cannot anticipate or control. The language of proposed

Sec. 39.13(f) is virtually identical to the language in

[[Page 3704]]

section 5b(c)(2)(D)(iii) of the CEA, as amended by the Dodd-Frank Act.

(f) Margin requirements.

(i) General.

As specified in section 5b(c)(2)(D)(iv) of the CEA, proposed Sec.

39.13(g)(1) would require that the initial margin that a DCO requires

from each clearing member must be sufficient to cover potential

exposures in normal market conditions and that each model and parameter

used in setting initial margin requirements must be risk-based and

reviewed on a regular basis.\33\ The Commission has not defined

``normal market conditions'' in the proposed regulation. Current

international recommendations define ``normal market conditions'' as

``price movements that produce changes in exposures that are expected

to breach margin requirements or other risk control mechanisms only 1%

of the time, that is, on average on only one trading day out of 100.''

\34\ The Commission invites comment regarding whether a definition of

``normal market conditions'' should be included in the proposed

regulation and, if so, how normal market conditions should be defined.

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\33\ The Commission has proposed to define ``initial margin'' as

``money, securities, or property posted by a party to a futures,

option, or swap as performance bond to cover potential future

exposures arising from changes in the market value of the

position.'' See 75 FR at 77585 (proposing Sec. 1.3(lll)).

\34\ CPSS-IOSCO Recommendations, pg. 21.

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(ii) Methodology and coverage.

Proposed Sec. 39.13(g)(2) would set forth requirements regarding

margin methodology and coverage. First, it would require a DCO to

establish initial margin requirements that are commensurate with the

risks of each product or portfolio, including any unique

characteristics of, or risks associated with, particular products or

portfolios. In particular, proposed 39.13(g)(2)(i) would require a DCO

that clears credit default swaps (CDS) to appropriately address jump-

to-default risk in setting initial margins.\35\ With the exception of

jump-to-default risk, the Commission has not defined specific risks

that a DCO should consider in light of the fact that such risks would

be product-specific and portfolio-specific. In addition, there may be

risks that might apply to products or portfolios that are cleared in

the future that cannot be anticipated at this time. The Commission

invites comment regarding whether there are specific risks that should

be identified and addressed in the proposed regulation in addition to

jump-to-default risk.

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\35\ Jump-to-default risk refers to the possibility that a CDS

portfolio with large net sales of protection on an underlying

reference entity could experience significant losses over a very

short period of time following an unexpected event of default by the

reference entity.

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Proposed Sec. 39.13(g)(2)(ii) would require a DCO to use margin

models that generate initial margin requirements sufficient to cover

the DCO's potential future exposures to clearing members based on price

movements in the interval between the last collection of variation

margin \36\ and the time within which the DCO estimates that it would

be able to liquidate a defaulting clearing member's positions

(liquidation time). A DCO would be required to use a liquidation time

that is a minimum of five business days for cleared swaps that are not

executed on a DCM, whether the swaps are carried in a customer account

subject to section 4d(a) or 4d(f) of the CEA, or a house account.\37\ A

DCO would be required to use a liquidation time that is a minimum of

one business day for all other products that it clears, although it

would be required to use longer liquidation times, if appropriate,

based on the unique characteristics of particular products or

portfolios.

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\36\ The Commission has proposed to define ``variation margin''

as ``a payment made by a party to a futures, option, or swap to

cover the current exposure arising from changes in the market value

of the position since the trade was executed or the previous time

the position was marked to market.'' See 75 FR at 77585 (proposing

Sec. 1.3(ooo)).

\37\ See infra section II.B.4.b of this notice, discussing

commingling of customer futures and cleared swaps positions.

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A minimum of one business day is the current standard that DCOs

generally apply to futures and options on futures contracts. The

Commission believes that a minimum of five business days is appropriate

for cleared swaps that are not executed on a DCM in that such a time

period may be necessary to close out swap positions in a cost-effective

manner.\38\ Several clearing organizations currently use a five-day

liquidation time in determining margin requirements for certain cleared

swaps. The Commission invites comment regarding whether the minimum

liquidation times specified in proposed Sec. 39.13(g)(2)(ii) are

appropriate, or whether there are minimum liquidation times that are

more appropriate.

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\38\ Pursuant to section(s) 4(c) and/or 4d of the CEA, the

Commission has previously issued several orders allowing funds

margining cleared swaps to be commingled with funds margining

futures and options on futures. In those orders, the Commission

permitted such swaps to be margined using liquidation times that

were less than five business days. See, e.g., 74 FR 12316 (Mar. 24,

2009) (corn, wheat and soybean swaps); 73 FR 77015 (Dec. 18, 2008)

(coffee, sugar and cocoa swaps); and Order of the Commodity Futures

Trading Commission, dated Sep. 26, 2008, entitled ``Treatment of

Funds Held in Connection with the Clearing of Over-the-Counter

Products by The Chicago Mercantile Exchange,'' available at http://www.cftc.gov/stellent/groups/public/@requestsandactions/documents/ifdocs/cbot4dorder9-26-08.pdf (ethanol swaps). The Commission

intends to grandfather the swaps subject to previously issued

orders, such that the relevant liquidation time periods for those

swaps would continue to be governed by the terms of the orders.

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Proposed Sec. 39.13(g)(2)(iii) would require that the actual

coverage of the initial margin requirements produced by a DCO's margin

models, along with projected measures of the models' performance, would

have to meet a confidence level of at least 99%, based on data from an

appropriate historic time period with respect to: (A) Each product that

is margined on a product basis; (B) each spread within or between

products for which there is a defined spread margin rate, as described

in proposed Sec. 39.13(g)(3); (C) each account held by a clearing

member at the DCO, by customer origin and house origin, and (D) each

swap portfolio, by beneficial owner. These requirements meet or exceed

international recommendations.\39\

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\39\ For example, on September 15, 2010, the European Commission

(EC) proposed the European Market Infrastructure Regulation (EMIR),

available at http://ec.europa.eu/internal_market/financial-markets/docs/derivatives/20100915_proposal_en.pdf, ``to ensure

implementation of the G20 commitments to clear standardized

derivatives [which can be accessed at http://www.g20.org/Documents/pittsburgh_summit_leaders_statement_250909.pdf], and that

Central Counterparties (CCPs) comply with high prudential standards

* * *,'' among other things, and expressed its intent to be

consistent with the Dodd-Frank Act. (EMIR, pg. 2-3). The EMIR

requires that margins ``* * * shall be sufficient to cover losses

that result from at least 99 per cent of the exposures movements

over an appropriate time horizon . * * *'' (EMIR, Article 39,

paragraph 1, pg. 46).

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The Commission recognizes that while some DCOs generally apply a

99% confidence level to some or all products that they clear, other

DCOs apply a confidence level of between 95% and 99% with respect to

certain products. In addition, certain DCOs may achieve an average

confidence level of 99% across all products that they clear, although

not every product may meet the 99% confidence level. The Commission

invites comment regarding whether a confidence level of 99% is

appropriate with respect to all applicable products, spreads, accounts,

and swap portfolios.\40\

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\40\ For example, the CPSS-IOSCO Recommendations state that

``[m]argin requirements for new and low-volume products might be set

at a lower coverage level [than the major products cleared by a CCP]

if the potential losses resulting from such products are minimal.''

(CPSS-IOSCO Recommendations, pg. 23).

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Proposed Sec. 39.13(g)(2)(iv) does not specify the historic time

period that a DCO would have to use when calculating a 99% confidence

level for any particular product, account, or portfolio. Rather, it

would permit each

[[Page 3705]]

DCO to exercise its discretion with respect to the appropriate time

periods that should be used in each instance, based on the

characteristics, including volatility patterns, as applicable, of the

products, spreads, accounts, or portfolios.

(iii) Independent validation.

Historically, many U.S. DCOs have used Chicago Mercantile

Exchange's (CME) proprietary risk-based portfolio margining system,

Standard Portfolio Analysis of Risk[supreg] (SPAN) as the basis for

their margin models for futures and options. However, there is at least

one other margin model that is currently being used for futures and

options, and there are also multiple margin models that DCOs are using

for swaps that are currently cleared. As DCOs begin to clear additional

swaps it can be anticipated that they will develop new margin models to

address the risks of particular products.

Proposed Sec. 39.13(g)(3) would require that, on a regular basis,

a DCO's systems for generating initial margin requirements, including

the DCO's theoretical models, would have to be reviewed and validated

by a qualified and independent party. A validation should include a

comprehensive analysis to ensure that such systems and models achieve

their intended goals. Although the proposed regulation does not define

the term ``regular basis,'' the Commission would expect that, at a

minimum, a DCO would obtain such an independent validation prior to

implementation of a new margin model and when making any significant

change to a model that is in use by the DCO. Significant changes would

be those that could materially affect the nature or level of risks to

which a DCO would be exposed. The Commission would expect a DCO to

obtain an independent validation prior to any significant change that

would relax risk management standards. However, if a DCO needed to

adopt a significant change in an expedited manner to enhance risk

protections, the Commission would expect the DCO to obtain an

independent validation promptly after the change was made.

The Commission has not proposed a definition of the term

``qualified and independent party.'' The Commission invites comment

regarding whether a qualified and independent party must be a third

party or whether there may be circumstances under which an employee of

the relevant DCO could be considered to be independent.

(iv) Spread margins.

Proposed Sec. 39.13(g)(4)(i) would permit a DCO to allow

reductions in initial margin requirements for related positions (spread

margins), if the price risks with respect to such positions were

significantly and reliably correlated. Under the proposed regulation,

the price risks of different positions would only be considered to be

reliably correlated if there was a theoretical basis for the

correlation in addition to an exhibited statistical correlation. A non-

exclusive list of possible theoretical bases includes the following:

(A) The products on which the positions are based are complements of,

or substitutes for, each other; (B) one product is a significant input

into the other product(s); (C) the products share a significant common

input; or (D) the prices of the products are influenced by common

external factors. An example of such an external factor might be

interest rates. An offset may not be based solely on the fact that the

prices of certain products have exhibited a statistical correlation in

the past. The DCO would be required to be able to articulate a

theoretical explanation for such a correlation. The Commission requests

comment regarding the appropriateness of requiring a theoretical basis

for the correlation between related positions before reductions in

initial margin requirements would be permitted.

Proposed Sec. 39.13(g)(4)(ii) would require a DCO to regularly

review its spread margins and the correlations on which they are based.

(v) Price data.

Proposed Sec. 39.13(g)(5) would require a DCO to have a reliable

source of timely price data to measure its credit exposure accurately,

and to have written procedures and sound valuation models for

addressing circumstances where pricing data is not readily available or

reliable. Both initial margin and variation margin calculations require

timely and reliable price data to be effective. DCOs should rely on

prices from continuous, transparent, and liquid markets, wherever

possible. It may be difficult to determine current market prices for

certain over-the-counter (OTC) products if there is no continuous

liquid market or if bid-ask spreads are volatile. In these

circumstances, DCOs would need to ensure that they would be able to

measure their credit exposures accurately through the use of sound

valuation models. The nature of such valuation models would necessarily

depend on the particular products and the source of any relevant

pricing data.

(vi) Daily review and back tests.

Daily review and periodic back testing are essential to enable a

DCO to ensure that its margin models continue to provide adequate

coverage of the DCO's risk exposures to its clearing members. Proposed

Sec. 39.13(g)(6) would require a DCO to determine the adequacy of its

initial margin requirements for each product, on a daily basis, with

respect to those products that are margined on a product basis.

Proposed Sec. 39.13(g)(7) would require a DCO to conduct certain back

tests. The Commission has proposed to define ``back test'' in a

separate rulemaking, as ``a test that compares a derivatives clearing

organization's initial margin requirements with historical price

changes to determine the extent of actual margin coverage.'' \41\ Thus,

the back tests required by proposed Sec. 39.13(g)(7), which would

require a comparison of initial margin requirements with historical

price changes, are distinguished from the daily review required by

proposed Sec. 39.13(g)(6), which would require a determination of

whether a margin breach had occurred on the particular day under

review. For purposes of proposed Sec. 39.13(g)(7)(i) and (ii),

proposed Sec. 39.13(g)(7) specifies that, in conducting back tests, a

DCO would be required to use historical price change data based on a

time period that is equivalent in length to the historic time period

used by the applicable margin model for establishing the minimum 99%

confidence level or a longer time period. The applicable time period is

separately specified for the back tests required by proposed Sec.

39.13(g)(7)(iii), as discussed below.

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\41\ See 75 FR at 77585 (proposing definitions in Sec. 39.1(b),

to be redesignated as Sec. 39.2).

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Proposed Sec. 39.13(g)(7)(i) would require a DCO, on a daily

basis, to conduct back tests with respect to products that are

experiencing significant market volatility. Specifically, a DCO would

be required to test the adequacy of its initial margin requirements and

its spread margin requirements for such products that are margined on a

product basis.

Proposed Sec. 39.13(g)(7)(ii) would require a DCO, on at least a

monthly basis, to conduct back tests to test the adequacy of its

initial margin requirements and spread margin requirements for each

product that is margined on a product basis. The Commission requests

comment regarding whether initial margin requirements for all products

should be subject to back tests on a monthly basis or whether some

other time period, such as quarterly, would be sufficient to meet

prudent risk management standards.

Proposed Sec. 39.13(g)(7)(iii) would require a DCO, on at least a

monthly basis, to conduct back tests to test the adequacy of its

initial margin

[[Page 3706]]

requirements for each clearing member's accounts, by customer origin

and house origin, and each swap portfolio, by beneficial owner, over at

least the previous 30 days. The Commission has proposed that the

initial margin requirements for such clearing member accounts and swap

portfolios must be compared to 30 days of historical data since the

composition of such accounts and swap portfolios may change on a daily

basis. The Commission anticipates that back tests with respect to such

accounts and portfolios would involve a review of the initial margin

requirements for each account and portfolio as it existed on each day

during the 30-day period. The Commission requests comment regarding

whether initial margin requirements for all clearing members' accounts,

by origin, and swap portfolios, by beneficial owner, should be subject

to back tests on a monthly basis or whether some other time period,

such as quarterly (based on the previous quarter's historical data),

would be sufficient to meet prudent risk management standards.

(vii) Customer margin.

Proposed Sec. 39.13(g)(8) addresses three different proposed

requirements regarding customer margin, including the collection of

gross margin for customer accounts, customer initial margin levels, and

withdrawals of customer initial margin.\42\

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\42\ The Commission has proposed to define ``customer initial

margin'' as ``initial margin posted by a customer with a futures

commission merchant, or by a non-clearing futures commission

merchant with a clearing member.'' See 75 FR at 77585 (proposing

Sec. 1.3(kkk)).

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(1) Gross margin for customer accounts.

Proposed Sec. 39.13(g)(8)(i) would require a DCO to collect

initial margin on a gross basis for each clearing member's customer

account equal to the sum of the initial margin amounts that would be

required by the DCO for each individual customer within that account if

each individual customer were a clearing member. A DCO would not be

permitted to net positions of different customers against one another,

but it could collect initial margin for its clearing members' house

accounts on a net basis.

The Commission recognizes that gross margining of customer accounts

would be a change from current margin practices at certain DCOs.

However, the Commission believes that gross margining of customer

accounts would more appropriately address the risks posed to a DCO by

its clearing members' customers than margining all of a particular

clearing member's customer accounts on a net basis. Gross margining

would increase the financial resources available to a DCO in the event

of a customer default. Moreover, with respect to cleared swaps, the

requirement for gross margining of customers' portfolios supports the

requirement in proposed Sec. 39.13(g)(2)(iii) that a DCO would have to

margin each swap portfolio at a minimum 99% confidence level.

The Commission recently proposed a new Sec. 39.19(c)(1)(iv) under

which a DCO would be required, on a daily basis, to report the end-of-

day positions for each clearing member, by origin.\43\ In connection

with the proposed Sec. 39.13(g)(8)(i) requirement for DCOs to collect

initial margin for customer accounts on a gross basis, the Commission

is proposing to amend proposed Sec. 39.19(c)(1)(iv) to additionally

require a DCO, for the customer origin, to report the gross positions

of each beneficial owner.

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\43\ See 75 FR at 78195.

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(2) Customer initial margin requirements.

Proposed Sec. 39.13(g)(8)(ii) would require a DCO to require its

clearing members to collect customer initial margin from their

customers for non-hedge positions at a level that is greater than 100%

of the DCO's initial margin requirements with respect to each product

and swap portfolio. Such a cushion would enable clearing members to

deposit additional margin with a DCO on behalf of their customers, as

necessitated by adverse market movements, without the need for the

clearing members to make frequent margin calls to their customers.

Historically, DCMs have mandated the amounts of customer initial

margin and maintenance margin that their FCM members must collect from

their customers.\44\ DCMs typically impose customer initial margin

requirements that are higher, by a specified percentage, than the

initial margin requirements imposed upon clearing FCMs by the relevant

DCO, and maintenance margin requirements that are equivalent to the

DCO's initial margin requirements. Customer initial margin requirements

have typically been between 125% and 140% of a DCO's initial margin

requirements.

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\44\ ``Maintenance margin'' refers to an amount that must be

maintained on deposit at all times. If the equity in a customer's

account drops below the level of maintenance margin because of

adverse price movement, the FCM must issue a margin call to restore

the customer's equity to the customer initial margin level.

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The Commission believes that DCOs should determine how much margin

their FCM clearing members must collect from their customers because a

DCO must ensure that its clearing members are able to meet their

obligations to the DCO. Moreover, although it may be appropriate for a

DCM to determine the customer initial margin requirements for non-

clearing FCM members of the DCM, with respect to products traded on the

DCM, a DCO may be the only entity in a position to assume any

responsibility for setting customer initial margin requirements for

cleared swaps that may be traded on SEFs or executed bilaterally.

Proposed Sec. 39.13(g)(8)(ii) would permit a DCO to have

reasonable discretion in determining the percentage by which customer

initial margins would have to exceed the DCO's initial margin

requirements with respect to particular products or swap portfolios. A

DCO would be familiar with the risk characteristics of particular

products and swap portfolios that it clears, which should enable it to

determine the extent of the cushion that a clearing member should have

with respect to customer initial margins. However, under the proposed

regulation, the Commission may review such percentage levels and

require different percentage levels, but not specific margin amounts,

if the Commission deems the levels insufficient to protect the

financial integrity of the clearing members or the DCO.

The customer initial margin requirement set forth in proposed Sec.

39.13(g)(8)(ii) would only apply with respect to customers' non-hedge

positions. Hedge margins are typically equal to maintenance margins.

(3) Withdrawal of customer initial margin.

Proposed Sec. 39.13(g)(8)(iii) would require a DCO to require its

clearing members to prohibit their customers from withdrawing 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 were cleared by the DCO. This is

consistent with the definition of ``Margin Funds Available for

Disbursement'' in the Margins Handbook prepared by the Joint Audit

Committee \45\ and, therefore, codifies current practices.

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\45\ See http;//www.nfa.futures.org/NFA-compliance/publication-library/margins-handbook.pdf.

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(viii) Time deadlines.

[[Page 3707]]

Proposed Sec. 39.13(g)(9) would require a DCO to establish and

enforce time deadlines for initial and variation margin payments. If

margin payments are not made on time, DCOs and clearing members face

uncollateralized risk.

(g) Other Risk Control Mechanisms

(i) Risk limits.

Proposed Sec. 39.13(h)(1)(i) would require a DCO to impose risk

limits on each clearing member, by customer origin and house origin, in

order to prevent a clearing member from carrying positions where the

risk exposure of those positions exceeds a threshold set by the DCO

relative to the clearing member's financial resources, the DCO's

financial resources, or both. The DCO would have reasonable discretion

in determining: (A) the method of computing risk exposure; (B) the

applicable threshold(s); and (C) the applicable financial resources,

provided however, that the ratio of exposure to capital would have to

remain the same across all capital levels. The Commission could review

any of these determinations and require different methods, thresholds,

or financial resources, as appropriate.

Proposed Sec. 39.13(h)(1)(ii) would allow a DCO to permit a

clearing member to exceed the threshold(s) applied pursuant to

paragraph (h)(1)(i) provided that the DCO required the clearing member

to post additional initial margin that the DCO deemed sufficient to

appropriately eliminate excessive risk exposure at the clearing member.

The Commission could review the amount of additional initial margin and

require a different amount, as appropriate.

(ii) Large trader reports.

Proposed Sec. 39.13(h)(2) would require a DCO to obtain from its

clearing members, copies of all reports that such clearing members were

required to file with the Commission pursuant to part 17 of the

Commission's regulations, i.e., large trader reports. A DCO would be

required to obtain such reports directly from the relevant reporting

market if the reporting market exclusively listed self-cleared

contracts, and were therefore required to file such reports on behalf

of clearing members, pursuant to Sec. 17.00(i).

Proposed Sec. 39.13(h)(2) would require a DCO to review the large

trader reports that it received from its clearing members, or reporting

markets, as applicable, on a daily basis to ascertain the risk of the

overall portfolio of each large trader. A DCO would be required to

review large trader positions for each large trader, across all

clearing members carrying an account for the large trader. A DCO would

also be required to take additional actions with respect to such

clearing members in order to address any risks posed by a large trader,

when appropriate. Such actions would include actions specified in

proposed Sec. 39.13(h)(6), as discussed in section II.B.2(g)(vi)

below.

(iii) Stress tests.

Proposed Sec. 39.13(h)(3) would require a DCO to conduct certain

daily and weekly stress tests. The Commission has proposed to define

``stress test'' in a separate rulemaking, as ``a test that compares the

impact of a potential price move, change in option volatility, or

change in other inputs that affect the value of a position, to the

financial resources of a derivatives clearing organization, clearing

member, or large trader, to determine the adequacy of such financial

resources.'' \46\ The Commission has not proposed a definition of

financial resources in this context, although it would be expected to

include, at a minimum, margin on deposit, and with respect to a

clearing member, its capital.

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\46\ See 75 FR at 77585-86 (proposing definitions in Sec.

39.1(b), to be redesignated as Sec. 39.2).

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Proposed Sec. 39.13(h)(3) would require a DCO to conduct certain

types of stress tests with respect to certain large traders on a daily

basis and with respect to all clearing member accounts and swap

portfolios on at least a weekly basis.

Proposed Sec. 39.13(h)(3)(i) would require a DCO to conduct daily

stress tests with respect to each large trader who poses significant

risk to a clearing member or the DCO in the event of default, including

positions at all clearing members carrying accounts for the large

trader. The DCO would have reasonable discretion in determining which

traders to test and the methodology used to conduct the stress tests.

However, the Commission could review the selection of accounts and the

methodology and require changes, as appropriate.

Proposed Sec. 39.13(h)(3)(ii) would require a DCO to conduct

stress tests, at least once a week with respect to each account held by

a clearing member at the DCO, by customer origin and house origin, and

each swap portfolio, by beneficial owner, under extreme but plausible

market conditions. The DCO would have reasonable discretion in

determining the methodology used to conduct these stress tests.

However, the Commission may review the methodology and require any

appropriate changes. The Commission requests comment regarding whether

all clearing member accounts, by origin, and all swap portfolios should

be subject to such stress tests on a weekly basis or whether some other

time period, such as monthly, would be sufficient to meet prudent risk

management standards.

(iv) Portfolio compression.

Proposed Sec. 39.13(h)(4)(i) would require a DCO to offer

multilateral portfolio compression exercises, on a regular basis, for

its clearing members that clear swaps, to the extent that such

exercises are appropriate for those swaps that it clears. The

Commission has not specified the frequency with which DCOs must offer

multilateral portfolio compression exercises in proposed Sec.

39.13(h)(4)(i), other than to state that they would have to be offered

on a regular basis. The Commission requests comment regarding whether

such exercises should be offered monthly, quarterly, or another

frequency. In addition, the Commission requests comment regarding

whether the frequency of such exercises should vary for different

categories of swaps.

Under proposed Sec. 39.13(h)(4)(ii), a DCO must require its

clearing members to participate in all multilateral portfolio

compression exercises offered by the DCO, to the extent that any swap

in the applicable portfolio is eligible for inclusion in the exercise,

unless including the swap would be reasonably likely to significantly

increase the risk exposure of the clearing member. Proposed Sec.

39.13(h)(4)(iii) would permit a DCO to allow clearing members

participating in such exercises to set risk tolerance limits for their

portfolios, provided that the clearing member could not set such risk

tolerances at an unreasonable level or use such risk tolerances to

evade the requirements of proposed Sec. 39.13(h)(4).

(v) Clearing members' risk management policies and procedures.

The Commission believes that in order for a DCO to adequately

manage its own risks, it must ensure that its clearing members also

have adequate risk management policies and procedures. In order to do

this, a DCO must have the authority to obtain documents and information

from its clearing members regarding such policies and procedures, and

must review their implementation on a periodic basis.

Proposed Sec. 39.13(h)(5) would impose several requirements upon

DCOs relating to their clearing members' risk management policies and

procedures. Specifically, a DCO must adopt rules that: (a) Require its

clearing members to maintain current written risk management policies

and procedures; (b) ensure that the DCO has the authority to request

and obtain information and documents from its

[[Page 3708]]

clearing members regarding their risk management policies, procedures,

and practices, including, but not limited to, information and documents

relating to the liquidity of their financial resources and their

settlement procedures; and (c) require its clearing members to make

information and documents regarding their risk management policies,

procedures, and practices available to the Commission upon the

Commission's request. In addition, a DCO would be required to review

the risk management policies, procedures, and practices of each of its

clearing members on a periodic basis and document such reviews.

Proposed Sec. 39.13(h)(5) does not define how DCOs would have to

conduct clearing member risk management reviews, and has not specified

a required frequency of such reviews except to state that they would

have to be conducted on a periodic basis. The Commission invites

comment regarding whether it should require that a DCO must conduct

risk reviews of its clearing members on an annual basis or within some

other time frame. The Commission also requests comment regarding

whether the Commission should require that such reviews be conducted in

a particular manner, e.g., whether there must be an on-site visit or

whether any particular testing should be required. In addition, the

Commission invites comment regarding whether, and to what extent, a DCO

should be permitted to vary the method and depth of such reviews based

upon the nature, risk profiles, or other regulatory supervision of

particular clearing members.

The risk management reviews contemplated by proposed Sec.

39.13(h)(5) would also support DCOs' compliance with Core Principle C

and proposed Sec. 39.12, by providing a means for the DCO and the

Commission to ensure that clearing members continue to meet

participation requirements relating to risk management.

(vi) Additional authority.

Proposed Sec. 39.13(h)(6) would require a DCO to take additional

actions with respect to particular clearing members, when appropriate,

based on the application of objective and prudent risk management

standards. Such actions would include, but would not be limited to: (i)

Imposing enhanced capital requirements; (ii) imposing enhanced margin

requirements; (iii) imposing position limits; (iv) prohibiting an

increase in positions; (v) requiring a reduction of positions; (vi)

liquidating or transferring positions; and (vii) suspending or revoking

clearing membership. The Commission believes that a DCO should have the

authority to take any of the specified actions or other appropriate

actions, and should take such actions, when necessary to address risks

posed to the DCO by particular clearing members or their customers.

However, a DCO would have the discretion to determine when to take

additional actions, and what actions to take, based on its exercise of

objective and prudent risk management standards.

3. Settlement Procedures

Core Principle E, as amended by the Dodd-Frank Act,\47\ requires a

DCO to: (a) Complete money settlements on a timely basis, but not less

frequently than once each business day; (b) employ money settlement

arrangements to eliminate or strictly limit its exposure to settlement

bank risks (including credit and liquidity risks from the use of banks

to effect money settlements); (c) ensure that money settlements are

final when effected; (d) maintain an accurate record of the flow of

funds associated with money settlements; (e) possess the ability to

comply with the terms and conditions of any permitted netting or offset

arrangement with another clearing organization; (f) establish rules

that clearly state each obligation of the DCO with respect to physical

deliveries; and (g) ensure that it identifies and manages each risk

arising from any of its obligations with respect to physical

deliveries.\48\ The Commission is proposing to adopt Sec. 39.14 to

establish requirements that a DCO would have to meet in order to comply

with Core Principle E.

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\47\ Section 5b(c)(2)(E) of the CEA; 7 U.S.C. 7a-1(c)(2)(E)

(Core Principle E).

\48\ Prior to amendment by the Dodd-Frank Act, Core Principle E

provided that [t]he applicant shall have the ability to--

(i) complete settlements on a timely basis under varying

circumstances;

(ii) maintain an adequate record of the flow of funds associated

with each transaction that the applicant clears; and

(iii) comply with the terms and conditions of any permitted

netting or offset arrangements with other clearing organizations.

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Proposed Sec. 39.14(a) would define ``settlement'' and

``settlement bank'' for purposes of Sec. 39.14. In particular,

``settlement'' is defined in proposed Sec. 39.14(a)(1) to include: (i)

Payment and receipt of variation margin for futures, options and swap

positions; (ii) payment and receipt of option premiums; (iii) deposit

and withdrawal of initial margin for futures, options and swap

positions; (iv) all payments due in final settlement of futures,

options and swap positions on the final settlement date with respect to

such positions; and (v) all other cash flows collected from or paid to

each clearing member, including but not limited to, payments related to

swaps such as coupon amounts. ``Settlement bank'' is defined in

proposed Sec. 39.14(a)(2) as ``a bank that maintains an account either

for the [DCO] or for any of its clearing members, which is used for the

purpose of transferring funds and receiving transfers of funds in

connection with settlements with the [DCO].''

(a) Daily settlements.

The daily settlement of financial obligations arising from the

addition of new positions and price changes with respect to all open

positions is an essential element of the clearing process at a DCO.

Proposed Sec. 39.14(b) would require a DCO to effect a settlement with

each clearing member at least once each business day, and to have the

authority and operational capacity to effect a settlement with each

clearing member, on an intraday basis, either routinely, when

thresholds specified by the DCO were breached, or in times of extreme

market volatility.

Proposed Sec. 39.14(b) would permit DCOs to exercise their

discretion regarding whether they would effect routine intraday

settlements or whether they would settle positions on an intraday basis

only when certain thresholds were breached or in times of extreme

market volatility. Moreover, a DCO would have the discretion to

establish any relevant thresholds and to define extreme market

volatility in the context of the products and portfolios that it

clears. These provisions are consistent with international

recommendations.\49\

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\49\ See CPSS-IOSCO Recommendations, pg. 21; EMIR, Article 39,

paragraph 3, pg. 46.

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(b) Settlement banks.

A DCO generally requires its clearing members to effect settlement

through one of a specified set of settlement banks. In addition, a DCO

itself often has a lead, concentration, or central settlement bank.

Proposed Sec. 39.14(c) would set forth three specific requirements

in furtherance of the general requirement that DCOs must employ

settlement arrangements to eliminate or strictly limit their exposure

to settlement bank risks. First, proposed Sec. 39.14(c)(1) would

require a DCO to have documented criteria for those banks that it would

use, and that it would permit its clearing members to use, as

settlement banks, including criteria addressing the capitalization,

creditworthiness, access to liquidity, operational reliability, and

regulation or supervision of such banks. Second, proposed Sec.

39.14(c)(2) would require a DCO to monitor each approved

[[Page 3709]]

settlement bank on an ongoing basis to ensure that it continues to meet

the documented criteria. Finally, proposed Sec. 39.14(c)(3) would

require a DCO to monitor the full range and concentration of its

exposures to its own and its clearing members' settlement banks \50\

and assess its own and its clearing members' potential losses and

liquidity pressures in the event that the settlement bank with the

largest share of settlement activity were to fail. If action were

reasonably necessary in order to eliminate or strictly limit exposures

to settlement banks, a DCO would be required to: (i) Maintain

settlement accounts at additional settlement banks; (ii) approve

additional settlement banks for use by its clearing members; (iii)

impose concentration limits with respect to its own or its clearing

members' settlement banks; and/or (iv) take any other appropriate

actions. The determination of whether any such actions were necessary

would be left to the discretion of the DCO in the first instance, but

such determination would have to be reasonable.

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\50\ A DCO may have multiple exposures to a settlement bank,

e.g., if the bank is also a clearing member or extends a credit

facility funding arrangement to the DCO.

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(c) Settlement finality.

Proposed Sec. 39.14(d) would require that a DCO must ensure that

settlement fund transfers are irrevocable and unconditional when the

DCO's accounts are debited or credited. In addition, the proposed

regulation would require that a DCO's legal agreements with its

settlement banks would have to state clearly when settlement fund

transfers would occur and a DCO would have to routinely confirm that

its settlement banks were effecting fund transfers as and when required

by those legal agreements.

(d) Recordkeeping.

Proposed Sec. 39.14(e) would incorporate Core Principle E's

requirement that a DCO must maintain an accurate record of the flow of

funds associated with each settlement.\51\

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\51\ Section 5b(c)(2)(E)(iv) of the CEA; 7 U.S.C. 7a-

1(c)(2)(E)(iv).

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(e) Netting arrangements.

Proposed Sec. 39.14(f) would incorporate Core Principle E's

requirement that a DCO must possess the ability to comply with each

term and condition of any permitted netting or offset arrangement with

any other clearing organization.\52\

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\52\ Section 5b(c)(2)(E)(v) of the CEA; 7 U.S.C. 7a-

1(c)(2)(E)(v).

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(f) Physical delivery.

Proposed Sec. 39.14(g) would set forth requirements with respect

to contracts, agreements, and transactions that are settled by physical

transfers of the underlying instruments or commodities. In particular,

the proposed regulation would require a DCO to establish rules clearly

stating each obligation that the DCO has assumed with respect to

physical deliveries, including whether it has an obligation to make or

receive delivery of a physical instrument or commodity, or whether it

indemnifies clearing members for losses incurred in the delivery

process, and to ensure that the risks of each such obligation are

identified and managed. Proposed Sec. 39.14(g) would not require DCOs

to assume any particular obligations in connection with physical

deliveries, in recognition of the fact that DCOs would need to

determine what, if any, obligations to assume on a product-specific

basis, in the exercise of prudent risk management standards.

4. Treatment of Funds

Core Principle F, as amended by the Dodd-Frank Act,\53\ requires a

DCO to:(a) Establish standards and procedures that are designed to

protect and ensure the safety of its clearing members' funds and

assets; (b) hold such funds and assets in a manner by which to minimize

the risk of loss or of delay in the DCO's access to the assets and

funds; and (c) only invest such funds and assets in instruments with

minimal credit, market, and liquidity risks.\54\ The Commission is

proposing to adopt Sec. 39.15 to establish requirements that a DCO

would have to meet in order to comply with Core Principle F.

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\53\ Section 5b(c)(2)(F) of the CEA; 7 U.S.C. 7a-1(c)(2)(F)

(Core Principle F).

\54\ Prior to amendment by the Dodd-Frank Act, Core Principle F

provided that ``[t]he applicant shall have standards and procedures

designed to protect and ensure the safety of member and participant

funds.''

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(a) Required standards and procedures.

Proposed Sec. 39.15(a) would require a DCO to establish standards

and procedures that are designed to protect and ensure the safety of

funds and assets belonging to clearing members and their customers.\55\

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\55\ Such ``assets'' would include any securities or property

that clearing members deposit with a DCO in order to satisfy initial

margin obligations, which are also sometimes referred to as

``collateral.'' Proposed Sec. 39.15 uses the term ``assets'' rather

than ``securities or property'' or ``collateral'' in order to be

consistent with the statutory language.

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(b) Segregation of funds and assets.

Proposed Sec. 39.15(b)(1) would require a DCO to comply with the

segregation requirements of section 4d of the CEA and Commission

regulations thereunder, or any other applicable Commission regulation

or order requiring that customer funds and assets be segregated, set

aside, or held in a separate account. The Commission has included this

language because it is an essential element of the standards and

procedures described in proposed Sec. 39.15(a). However, proposed

Sec. 39.15(b)(1) would not impose any new requirements on DCOs that

are in addition to those required by section 4d of the CEA and those

that are currently required, or may in the future be required, by

applicable Commission regulations or orders.

Proposed Sec. 39.15(b)(2)(i) would permit a DCO to commingle, and

a DCO to permit clearing member FCMs to commingle, customer positions

in futures, options on futures, and swaps, and any money, securities,

or property received to margin, guarantee, or secure such positions, in

an account subject to the requirements of section 4d(f) of the CEA

(cleared swap account), pursuant to DCO rules that have been approved

by the Commission under Sec. 40.5 of the Commission's regulations. The

proposed regulation would establish minimum informational requirements

for such rule submissions, consistent with the informational

requirements the Commission has previously imposed upon petitioners

requesting orders under section 4d of the CEA.

The rule filing would have to be submitted electronically to the

Commission, in the form and manner required by the Commission, and

would have to include, at a minimum, the following: (A) An

identification of the futures, options on futures, and swaps that would

be commingled, including contract specifications or the criteria that

would be used to define eligible futures, options on futures, and

swaps; (B) an analysis of the risk characteristics of the eligible

products; (C) a description of whether the swaps would be executed

bilaterally and/or executed on a DCM and/or a SEF; (D) an analysis of

the liquidity of the respective markets for the futures, options on

futures, and swaps that would be commingled, the ability of clearing

members and the DCO to offset or mitigate the risks of such products in

a timely manner, without compromising the financial integrity of the

account, and, as appropriate, proposed means for addressing

insufficient liquidity; (E) an analysis of the availability of reliable

prices for each of the eligible products; (F) a description of the

financial, operational, and managerial standards or requirements for

clearing members that would be permitted to commingle the eligible

products; (G) a description of the systems and procedures that would be

used by the DCO to oversee such clearing members' risk management of

the commingled positions; (H) a

[[Page 3710]]

description of the financial resources of the DCO, including the

composition and availability of a guaranty fund with respect to the

commingled products; (I) a description and analysis of the margin

methodology that would be applied to the commingled products, including

any margin reduction applied to correlated positions, and any

applicable margin rules with respect to both clearing members and

customers; \56\ (J) an analysis of the ability of the DCO to manage a

potential default with respect to any of the commingled products; (K) a

discussion of the procedures that the DCO would follow if a clearing

member defaulted, and the procedures that a clearing member would

follow if a customer defaulted, with respect to any of the commingled

products; and (L) a description of the arrangements for obtaining daily

position data from each beneficial owner of the commingled products.

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\56\ See supra section II.B.2.f.ii of this notice, discussing

the minimum liquidation time of five business days for margining

cleared swaps that are not executed on a DCM.

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Proposed Sec. 39.15(b)(2)(ii) addresses situations where customer

positions in futures, options on futures, and cleared swaps could be

carried in a futures account subject to section 4d(a) of the CEA. In

recent years, the Commission, in its discretion, has issued orders

permitting cleared swaps to be carried in a futures account, on a case-

by-case basis.\57\ Proposed Sec. 39.15(b)(2)(ii) would incorporate the

informational requirements of proposed Sec. 39.15(b)(2)(i), but would

still require that the Commission issue an order granting permission to

commingle customer positions in futures, options on futures, and swaps

in a futures account.

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\57\ See supra n.38.

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Proposed Sec. 39.15(b)(2)(iii)(A) would provide that the

Commission may request additional information in support of a rule

submission and it may approve the rules in accordance with Sec.

40.5.\58\ Proposed Sec. 39.15(b)(2)(iii)(B) would provide that the

Commission may request additional information in support of a petition

and it may issue an order under section 4d of the CEA in its

discretion.

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\58\ Rules submitted for prior approval would be approved unless

the rule is inconsistent with the CEA or the Commission's

regulations. See section 5c(c)(5) of the CEA; 7 U.S.C. 7a-2(c)(5);

and 75 FR at 67295.

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In the case of a rule approval under Sec. 39.15(b)(2)(i), as well

as the issuance of an order under Sec. 39.15(b)(2)(ii), the Commission

would take action pursuant to section 4d of the CEA (permitting

commingling) and section 4(c) of the CEA (exempting the DCO and

clearing members from the requirement to hold customer positions in a

particular account, as applicable, 4d(a) or 4d(f)).\59\

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\59\ 7 U.S.C. 6(c). See infra section IV. (further discussing

the 4(c) exemption and requesting comment).

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The Commission requests comment on whether it should take the same

approach (rule submission or petition for an order) with respect to the

futures account and the cleared swap account and, if so, what that

approach should be. In addition, the Commission requests comment on

whether the enumerated informational requirements fully capture the

relevant considerations for making a determination on either rule

approval or the granting of an order, and whether the Commission's

analysis should take into consideration the type of account in which

the positions would be carried, the particular type of products that

would be involved, or the financial resources of the clearing members

that would hold such accounts. The Commission further requests comment

on what, if any, additional or heightened requirements should be

imposed to manage the increased risks introduced to a futures account

that also holds cleared swaps.

(c) Holding of funds and assets.

Proposed Sec. 39.15(c) would require that a DCO must hold funds

and assets belonging to clearing members and their customers in a

manner that minimizes the risk of loss or of delay in the DCO's access

to those funds and assets. In furtherance of this objective, the

Commission has proposed certain requirements addressing types of assets

that a DCO may accept, the valuation of such assets, applicable

haircuts, concentration limits, and requirements that would apply if

assets were pledged to a DCO but were held in the name of a clearing

member, as described below.

(i) Types of assets.

Proposed Sec. 39.15(c)(1) would require a DCO to limit the assets

it accepts as initial margin to those that have minimal credit, market,

and liquidity risks. The proposed regulation would also state that a

DCO may not accept letters of credit as initial margin. The Commission

has not specified the assets that a DCO may accept, and with the

exception of letters of credit, it has not specified the assets that a

DCO may not accept. In general, proposed Sec. 39.15(c)(1) would set

forth the criteria of minimal credit, market, and liquidity risks and

would leave it to the discretion of each DCO to determine which assets

the DCO would accept, subject to their meeting those criteria. The

Commission has proposed to prohibit the acceptance of letters of credit

because they are unfunded financial resources with respect to which

funds might be unavailable when most needed. The Commission expects

that DCOs would continue their current practice of re-evaluating the

types of assets that they would accept as initial margin as

necessitated by changes in market conditions that could affect the

credit, market, and liquidity risks of those assets.

(ii) Valuation.

Proposed Sec. 39.15(c)(2) would require a DCO to use prudent

valuation practices to value assets posted as initial margin on a daily

basis. The Commission has not specified what such valuation practices

should entail, as the nature of the valuations would depend on the

nature of the particular assets. However, whatever method would be used

to determine the value of margin assets, it is crucial that such assets

be valued daily, because a DCO cannot evaluate the adequacy of margin

coverage on a daily basis without knowing the value of the assets that

are components of the margin on deposit. Such daily valuation of margin

assets is currently the standard practice of DCOs.

(iii) Haircuts.

Proposed Sec. 39.15(c)(3) would require a DCO to apply appropriate

reductions in value to reflect the market and credit risk of the assets

that it accepts in satisfaction of initial margin obligations. Such

reductions are known as haircuts, and DCOs currently apply haircuts to

the margin assets that they accept as initial margin. Haircuts are

designed to mitigate the potential future exposure that could result

from potential changes in the value of particular assets.

Haircut levels would be dependent on the nature of the particular

assets. DCOs would be required to calculate their haircuts taking into

account stressed market conditions. Incorporating stressed market

conditions into the calculation of haircuts can limit the effects of

procyclicality, which refers to changes that are positively correlated

with business or credit cycle fluctuations and that may cause or

exacerbate financial instability.\60\ In

[[Page 3711]]

addition, the proposed regulation would require a DCO to evaluate the

appropriateness of its haircuts on at least a quarterly basis.

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\60\ While changes in collateral values tend to be procyclical,

collateral arrangements can increase procyclicality if haircut

levels fall during periods of low-market stress and increase during

periods of high-market stress. For example, in a stressed market, if

a DCO required the posting of additional collateral due to both the

decline of asset prices and an increase in haircut levels, it could

exacerbate market stress and drive down asset prices further,

resulting in additional collateral requirements. This cycle could

exert further downward pressure on asset prices in already stressed

markets. To limit the effects of this procyclicality, a DCO should

establish stable and conservative haircuts that are calibrated to

include periods of stressed market conditions.

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(iv) Concentration limits.

Proposed Sec. 39.15(c)(4) would require a DCO to apply appropriate

limitations on the concentration of assets posted as initial margin, as

necessary, in order to ensure the DCO's ability to liquidate those

assets quickly with minimal adverse price effects. Any concentration

limits would be set by the DCO, in its discretion, depending on the

nature of the assets. The proposed regulation would require a DCO to

evaluate the appropriateness of its concentration limits, on at least a

monthly basis.

(v) Pledged assets.

Some DCOs permit their clearing members to pledge assets for

initial margin while retaining those assets in accounts in the names of

the pledging clearing members. Proposed Sec. 39.15(c)(5) would require

that if such pledged assets were held in an account in the name of a

clearing member, the DCO would have to ensure that the assets were

unencumbered and that the pledge had been validly created and validly

perfected in the relevant jurisdiction, in order to ensure that the DCO

had immediate access to those assets.

(d) Permissible investments.

Proposed Sec. 39.15(d) would require that clearing members' funds

and assets that are invested by a DCO must be held in instruments with

minimal credit, market, and liquidity risks.\61\ The proposed

regulation further adds that any investment of customer funds or assets

by a DCO would have to comply with Sec. 1.25 of the Commission's

regulations, which itself is designed to ensure that such investments

would be subject to minimal credit, market, and liquidity risks.

Moreover, the proposed regulation would apply the limitations contained

in Sec. 1.25 to all customer funds and assets, whether they were the

funds and assets of futures and options customers subject to the

segregation requirements of section 4d(a) of the CEA, or the funds and

assets of swaps customers subject to the segregation requirements of

section 4d(f) of the CEA.

The proposed regulation does not enumerate the specific instruments

in which DCOs may invest clearing members' own funds and assets,

leaving it to the discretion of each DCO to determine which instruments

have minimal credit, market, and liquidity risks. As regards those

assets that DCOs would accept as initial margin, the Commission expects

that DCOs would continue their current practice of re-evaluating the

instruments in which they would invest clearing members' own funds and

assets, as necessitated by changes in market conditions that could

affect the credit, market, and liquidity risks of those instruments.

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\61\ IOSCO Recommendation 7 (custody and investment risks) also

states, in part, that ``[a]ssets invested by a CCP should be held in

instruments with minimal credit, market, and liquidity risks.''

(CPSS-IOSCO Recommendations, pg. 31).

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5. Default Rules and Procedures

Core Principle G, as amended by the Dodd-Frank Act,\62\ requires

each DCO to have rules and procedures designed to allow for the

efficient, fair, and safe management of events during which clearing

members become insolvent or otherwise default on their obligations to

the DCO. In addition, Core Principle G requires each DCO to clearly

state its default procedures, make its default rules publicly

available, and ensure that it may take timely action to contain losses

and liquidity pressures and to continue meeting its obligations.\63\

The Commission is proposing to adopt Sec. 39.16 to establish

requirements that a DCO would have to meet in order to comply with Core

Principle G.

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\62\ Section 5b(c)(2)(G) of the CEA; 7 U.S.C. 7a-1(c)(2)(G)

(Core Principle G).

\63\ Prior to amendment by the Dodd-Frank Act, Core Principle G

provided that ``[t]he applicant shall have rules and procedures

designed to allow for efficient, fair, and safe management of events

when members or participants become insolvent or otherwise default

on their obligations to the derivatives clearing organization.''

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(a) General.

It is essential that DCOs have clearly defined and effective

default management rules and procedures in order to protect the

defaulting clearing members' customers, non-defaulting clearing

members, and the DCO, to the extent possible. Proposed Sec. 39.16(a)

would require DCOs to adopt rules and procedures designed to allow for

the efficient, fair, and safe management of events during which

clearing members become insolvent or default on the obligations of such

clearing members to the DCO.\64\ Existing DCOs have rules and

procedures to address possible defaults.

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\64\ Core Principle G specifically refers to events during which

clearing members ``(I) become insolvent; or (II) otherwise default *

* *.'' However, it is possible that a clearing member could become

insolvent and not default on its obligations to the DCO. For

example, the insolvency could be a consequence of a clearing

member's meeting all such obligations. Nevertheless, the Commission

believes that a clearing member should be required to follow certain

procedures, beginning with notifying the DCO, if it becomes subject

to a bankruptcy petition, receivership proceeding, or the

equivalent, and such proposed requirements are contained in proposed

Sec. 39.16(d), discussed infra in section II.B.5.d.

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(b) Default management plan.

Proposed Sec. 39.16(b) would require a DCO to maintain a current

written default management plan that delineates the roles and

responsibilities of its Board of Directors, its Risk Management

Committee, any other committee that has responsibilities for default

management, and the DCO's management, in addressing a default,

including any necessary coordination with, or notification of, other

entities and regulators. The proposed regulation would also require the

default management plan to address any differences in procedures with

respect to highly liquid contracts (such as certain futures) and less

liquid contracts (such as certain swaps). In addition, proposed Sec.

39.16(b) would require a DCO to conduct and document a test of its

default management plan on at least an annual basis.

(c) Default procedures.

Proposed Sec. 39.16(c)(1) would require a DCO to adopt procedures

that would permit the DCO to take timely action to contain losses and

liquidity pressures and to continue meeting its obligations in the

event of a default on the obligations of a clearing member to the

DCO.\65\

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\65\ Similarly, IOSCO Recommendation 6 (Default procedures)

states that ``[a] CCP's default procedures should be clearly stated,

and they should ensure that the CCP can take timely action to

contain losses and liquidity pressures and to continue meeting its

obligations.'' (CPSS-IOSCO Recommendations, pg. 27).

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Proposed Sec. 39.16(c)(2) would require a DCO to include certain

identified procedures in its default rules. In particular, proposed

Sec. 39.16(c)(2)(i) would require a DCO to set forth its definition of

a default. Proposed Sec. 39.16(c)(2)(ii) would require a DCO to set

forth the actions that it is able to take upon a default, which must

include the prompt transfer, liquidation, or hedging of the customer or

proprietary positions of the defaulting clearing member, as applicable.

Proposed Sec. 39.16(c)(2)(ii) would further state that such procedures

could also include, in the DCO's discretion, the auctioning or

allocation of such positions to other clearing members. Proposed Sec.

39.16(c)(2)(iii) would require a DCO to include in its default rules

any obligations that the DCO imposed on its clearing members to

participate in auctions, or to accept allocations, of a defaulting

clearing member's positions, and specifically would provide that any

allocation would have to be proportional to the size of the

participating or accepting clearing member's positions at the DCO. For

example, certain DCO rules currently address the DCO's authority to

auction a defaulting clearing member's

[[Page 3712]]

swaps to other clearing members that participate in the market for that

category of swaps.

Proposed Sec. 39.16(c)(2)(iv) would require that a DCO's default

rules address the sequence in which the funds and assets of the

defaulting clearing member and the financial resources maintained by

the DCO would be applied in the event of a default. The proposed

regulation would not specify the sequence in which a DCO would be

required to apply its own resources or those of the defaulting clearing

member, but it would set forth two related requirements.

First, proposed Sec. 39.16(c)(2)(v) would require that a DCO's

default rules contain a provision that customer margin posted by a

defaulting clearing member could not be applied in the event of a

proprietary default. This is consistent with the segregation

requirements of section 4d of the CEA and Sec. 1.20 of the

Commission's regulations.

Second, proposed Sec. 39.16(c)(2)(vi) would require that a DCO's

default rules contain a provision that proprietary margins posted by a

defaulting clearing member would have to be applied in the event of a

customer default, if the relevant customer margin were insufficient to

cover the shortfall. This is consistent with Sec. 190.08(a)(ii)(J),

which defines customer property to include the trading accounts of an

FCM, to the extent that other enumerated customer property is

insufficient to satisfy all claims of public customers in the

bankruptcy of the FCM.

Proposed Sec. 39.16(c)(3) would incorporate the Core Principle G

requirement that a DCO must make its default rules publicly

available,\66\ and it cross-references proposed Sec. 39.21, which has

been proposed in a separate rulemaking and which also addresses this

requirement.\67\

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\66\ See section 5b(c)(2)(G)(ii)(II) of the CEA; 7 U.S.C. 7a-

1(c)(2)(G)(ii)(II).

\67\ See 75 FR at 78197.

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(d) Insolvency of a clearing member.

Proposed Sec. 39.16(d) would set forth specific procedures that a

DCO would have to require its clearing members to follow, and that a

DCO itself would have to follow, if a clearing member became the

subject of a bankruptcy petition (either voluntary or involuntary), a

receivership proceeding, or an equivalent proceeding, e.g., a foreign

liquidation proceeding. The Commission believes that such procedures

would be necessary in order to provide for ``the efficient, fair, and

safe management of events'' when a clearing member becomes insolvent,

as required by Core Principle G.

Proposed Sec. 39.16(d)(1) would require a DCO to adopt rules that

would require a clearing member to provide prompt notice to the DCO of

such a petition or proceeding. Proposed Sec. 39.13(d)(2) would require

a DCO to review the clearing member's continuing eligibility for

clearing membership upon receiving such notice. Proposed Sec.

39.16(d)(3) would require a DCO to take any appropriate action, in its

discretion, with respect to the clearing member or its positions,

including but not limited to liquidation or transfer of positions, and

suspension or revocation of clearing membership. Proposed Sec.

39.16(d)(2) does not outline specific review procedures, and Sec.

39.16(d)(3) would leave it to the discretion of the DCO to determine

whether any particular action were appropriate with respect to the

clearing member.

6. System Safeguards

Core Principle I, as amended by the Dodd-Frank Act,\68\ requires

each DCO to establish and maintain a program of risk analysis and

oversight to identify and minimize sources of operational risk through

the development of appropriate controls and procedures, and automated

systems that are reliable, secure, and have adequate scalable capacity.

Core Principle I also requires each DCO to establish and maintain

emergency procedures, backup facilities, and a plan for disaster

recovery that allows for the timely recovery and resumption of

operations of, and the fulfillment of each obligation and

responsibility of, the DCO. Finally, Core Principle I requires each DCO

to periodically conduct tests to verify that its backup resources are

sufficient to ensure daily processing, clearing, and settlement.\69\

The Commission is proposing to adopt Sec. 39.18 to establish

requirements that a DCO would have to meet in order to comply with Core

Principle I.

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\68\ Section 5b(c)(2)(I) of the CEA; 7 U.S.C. 7a-1(c)(2)(I)

(Core Principle I).

\69\ Prior to amendment by the Dodd-Frank Act, Core Principle I

provided that

[t]he applicant shall demonstrate that the applicant (i) has

established and will maintain a program of oversight and risk

analysis to ensure that the automated systems of the applicant

function properly and have adequate capacity and security; and (ii)

has established and will maintain emergency procedures, and a plan

for disaster recovery, and will periodically test backup facilities

sufficient to ensure daily processing, clearing, and settlement of

transactions.

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(a) General.

Proposed Sec. 39.18 would codify the requirements of Core

Principle I and would establish additional standards for a DCO's

business continuity and disaster recovery procedures. On July 14,

2010,\70\ the Commission published proposed regulations regarding

business continuity and disaster recovery applicable to DCOs and DCMs.

After consideration of the provisions of the Dodd-Frank Act, the

Commission has determined to re-propose the provisions concerning DCOs.

The Commission appreciates the comments made with respect to those

earlier proposed regulations, and has taken them into account in

developing the proposed regulations described below.

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\70\ See 75 FR 42633 (July 22, 2010) (July Proposal).

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(i) Definitions.

Proposed Sec. 39.18(a) would set forth relevant definitions for

the system safeguards provisions applicable to DCOs set forth in Sec.

39.18 and the modified system safeguards provisions applicable to

SIDCOs set forth in Sec. 39.30, including ``recovery time objective''

(the time period, after disruption, within which a DCO should be able

to achieve recovery and resumption of clearing activities) (RTO),

``relevant area'' (the geographic area within which a DCO has necessary

resources, as well as adjacent communities), and ``wide-scale

disruption'' (an event that causes severe disruption of critical

infrastructure, or an evacuation or unavailability of the population,

in a relevant area).\71\

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\71\ The Commission may consider, in a future rulemaking,

placing an expanded version of these definitions (to include, e.g.,

recovery time objectives with respect to DCMs and other registered

entities) in part 1, and, as appropriate, incorporating those

definitions by reference in part 39 of its regulations.

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(ii) Program of risk analysis.

Because automated systems play a central and critical role in

today's electronic financial market environment, oversight of core

principle compliance by DCOs with respect to automated systems is an

essential part of effective clearing oversight. Sophisticated computer

systems are crucial to a DCO's ability to meet its obligations and

responsibilities. Safeguarding the reliability, security, and capacity

of such systems is also essential to mitigation of systemic risk for

the nation's financial sector as a whole.

Proposed Sec. 39.18(b) would require that a DCO maintain a program

of risk analysis and oversight with respect to its operations and

automated systems to identify and minimize sources of operational risk,

establish and maintain resources that allow for the fulfillment of the

DCO's obligations and responsibilities in light of those risks, and

verify that those resources are

[[Page 3713]]

adequate to ensure daily processing, clearing, and settlement.

(iii) Elements of program.

Proposed Sec. 39.18(c) would require that the program of risk

analysis and oversight address each of six categories: information

security, business continuity and disaster recovery (BC-DR), capacity

and performance planning, systems operations, systems development and

quality assurance, and physical security and environmental controls.

(iv) Standards for program.

DCO compliance with generally accepted standards and best practices

with respect to the development, operation, reliability, security, and

capacity of automated systems can reduce the frequency and severity of

automated system security breaches or functional failures, thereby

augmenting efforts to mitigate systemic risk. Accordingly, proposed

Sec. 39.18(d) would require that a DCO follow generally accepted

standards and industry best practices with respect to the development,

operation, reliability, security, and capacity of automated systems.

(v) Business continuity and disaster recovery.

Proposed Sec. 39.18 (e) would require that a DCO maintain a BC-DR

plan, procedures, and physical (e.g., buildings, generators, and

related physical infrastructure), technological (e.g., computers,

replacement parts, and software), and personnel resources (e.g.,

trained employees or other committed human resources) sufficient to

enable timely recovery and resumption of operations, and fulfillment of

responsibilities (e.g., daily processing, clearing and settlement of

transactions cleared) of the DCO following a disruption. The required

recovery time objective would be no later than the next business day.

As noted below, proposed Sec. 39.30 would set a more stringent RTO for

SIDCOs.

(vi) Location of resources; outsourcing.

Proposed Sec. 39.18(f) would clarify that a DCO could maintain the

resources required pursuant to Sec. 39.18(e) on its own or through an

outsourcing arrangement with another DCO or other service provider.

Proposed Sec. 39.18(f)(i) would provide that an outsourcing DCO would

retain complete liability for any failure to meet the specified

responsibilities, and must employ personnel with the expertise

necessary to enable the DCO to supervise the service provider. Proposed

Sec. 39.18(f)(ii) would require that testing include all of the DCO's

own and outsourced resources, and verify that such resources will work

effectively together.

In response to the July Proposal, a number of commenters expressed

concern that it was impractical for DCOs to have all key job functions

fully duplicated. The proposed regulation clarifies that a DCO may

maintain such functions on its own (including, e.g., through cross-

training) or through written outsourcing arrangements, including with

another DCO.

The Commission seeks comment on whether these provisions governing

outsourcing are appropriate, and whether the clarifications concerning

the retention of responsibility and the necessity for integrated

testing should be expanded to cover all functions of a DCO.

(vii) Notification of Commission staff; recordkeeping.

Proposed Sec. 39.18(g) would require each DCO to notify Commission

staff of various exceptional events, such as technology malfunctions,

system security-related incidents, or targeted threats. The proposed

regulation attempts to achieve a reasonable balance, requiring

notification only of such events that materially impair, or create a

significant likelihood of material impairment, of automated system

operation, reliability, security, or capacity. The proposed regulation

would also require notification of any activation of the DCO's BC-DR

plan.

Proposed Sec. 39.18(h) would require a DCO to give Commission

staff timely advance notice of planned changes, either changes to

automated systems that are likely to have a significant impact on such

systems, or changes to the DCO's program of risk analysis and

oversight.

Proposed Sec. 39.18(i) would require a DCO to maintain current

copies of its business continuity plan and other emergency procedures,

its assessments of its operational risks, and records of testing

protocols and results; to provide copies of such records to Commission

staff pursuant to Sec. 1.31; and to provide other documents requested

by Commission staff for the purpose of maintaining a current profile of

the DCO's automated systems.

(viii) Testing.

Proposed Sec. 39.18(j) would require a DCO to conduct regular,

periodic, objective testing and review of its automated systems to

ensure that they are reliable, secure, and have adequate scalable

capacity, and of its BC-DR capabilities, using testing protocols

adequate to ensure that the DCO's backup resources are sufficient to

meet the RTO specified in Sec. 39.18(e). The testing would be required

to be conducted by qualified, independent professionals. While such

professionals could include employees of the DCO, they could not be

persons responsible for development or operation of the systems or

capabilities being tested.

Reports setting forth the protocols for, and results of, such tests

would be required to be communicated to, and reviewed by, senior

management of the DCO. Because tests that result in few or no

exceptions raise the possibility of an insufficiently rigorous

protocol, such results would be required to be subject to more

searching review.

(ix) Coordination of business continuity and disaster recovery

plans.

Proposed Sec. 39.18(k) would require each DCO, to the extent

practicable, to coordinate its BC-DR plan with those of its clearing

members, to initiate coordinated testing of such plans, and to take

into account in its own BC-DR plan the BC-DR plans of its providers of

essential services, including telecommunications, power, and water.

(b) SIDCOs.

(i) Determining which DCOs will be subject to enhanced BC-DR

obligations.

As DCOs, SIDCOs would remain subject to the requirements of Title

VII and the regulations thereunder, except to the extent the Commission

promulgates higher standards pursuant to Title VIII of the Dodd-Frank

Act.

Unlike the July Proposal,\72\ these proposed regulations do not

provide a means for the Commission to determine which DCOs are ``core

clearing and settlement organizations.'' In light of the provisions of

section 804 of the Dodd-Frank Act for designation of systemically

important clearing or settlement activities, the Commission proposes to

avoid duplication by applying the enhanced BC-DR obligations described

below to SIDCOs.

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\72\ See id. at 42639 (proposed appendix E to part 40--Guidance

on Critical Financial Market and Core Clearing and Settlement

Organization Determination).

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(ii) Recovery time objective.

Proposed Sec. 39.30(a) would set an RTO for SIDCOs of recovery no

later than two hours following the disruption, for any disruption

including a wide-scale disruption,\73\ in light of the important

[[Page 3714]]

role that SIDCOs play in the financial system. The term ``wide-scale

disruption'' is defined in proposed Sec. 39.18(a).

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\73\ See Interagency Paper on Sound Practices To Strengthen the

Resilience of the U.S. Financial System, 68 FR 17809, 17812 (Apr.

11, 2003) (White Paper) which states

``core clearing and settlement organizations are necessary to

the completion of most transactions in critical markets;

accordingly, they must recover and resume their critical functions

in order for other market participants to process pending

transactions and complete large-value payments. It also is

reasonable to assume that there will be firms that play significant

roles and other market participants in locations not affected by a

particular disruption that will need to clear and settle pending

transactions in critical markets. Therefore, core clearing and

settlement organizations should plan both to recover and resume

their processing and other activities that support critical markets.

In light of the large volume and value of transactions/payments that

are cleared and settled on a daily basis, failure to complete the

clearing and settlement of pending transactions within the business

day could create systemic liquidity dislocations, as well as

exacerbate credit and market risk for critical markets. Therefore,

core clearing and settlement organizations should develop the

capacity to recover and resume clearing and settlement activities

within the business day on which the disruption occurs with the

overall goal of achieving recovery and resumption within two hours

after an event''

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(iii) Geographic diversity.

Because of the importance of SIDCOs to the financial system, and

the fact that a wide-scale disruption may cause the physical or

technological resources that are located within the relevant area, or

personnel who live or work within the relevant area, to be temporarily

or permanently unavailable, proposed Sec. 39.30(b) would require each

SIDCO to maintain geographic dispersal of physical and technological

resources and personnel.

Physical and technological resources must, pursuant to proposed

Sec. 39.30(b)(1), be located outside the relevant area of the

infrastructure the entity normally relies upon to conduct activities

necessary to the clearance and settlement of existing and new

contracts, and the SIDCO could not rely on the same critical

transportation, telecommunications, power, water, or other critical

infrastructure components the entity normally relies upon for such

activities. Moreover, proposed Sec. 39.30(b)(2) would require

personnel, sufficient to enable the SIDCO to meet the recovery time

objective after interruption of normal clearing by a wide-scale

disruption affecting the relevant area, who live and work outside that

relevant area.

While these proposed requirements would likely lead to a

considerable expense, the Commission believes that the systemic

importance of SIDCOs carries with it a responsibility to be reliably

available on a near-continuous basis, to fulfill their obligations.

Moreover, to provide an opportunity to meet this responsibility in a

flexible manner, proposed Sec. 39.30(b)(3) would make it explicit that

the outsourcing provisions of proposed Sec. 39.18(f) would apply to

these resource requirements.

(iv) Testing.

Proposed Sec. 39.30(c) would require each SIDCO to conduct

regular, periodic tests of its business continuity and disaster

recovery plans and resources and its capacity to achieve the required

recovery time objective in the event of a wide-scale disruption, and

would state that the provisions of proposed Sec. 39.18(j), concerning

testing by DCOs, would apply. Moreover, with respect to outsourcing,

proposed Sec. 39.18(f)(2)(ii) would provide that the testing

referenced in proposed Sec. 39.30(c) ``shall include all [of the

DCO's] own and outsourced resources, and shall verify that all such

resources will work effectively together.''

(v) Effective date.

A number of commenters on the July Proposal suggested that the

establishment of geographically diverse capabilities would require an

extended implementation period, such as 24 months. The Commission

observes with approval, however, that a number of potential SIDCOs

already have geographic dispersal of certain resources, and/or are

already working to achieving such dispersal. Accordingly, the

Commission proposes an effective date for the SIDCO requirements of the

later of one year from the effective date of these regulations, or July

30, 2012. Moreover, Sec. 39.30(d) provides that proposed Sec. 39.30

will apply to a DCO no earlier than one year after such DCO is

designated as systemically important.

7. Special Enforcement Authority Over SIDCOs

Under section 807(c) of the Dodd-Frank Act, for purposes of

enforcing the provisions of Title VIII, a SIDCO is subject to, and the

Commission has authority under the provisions of subsections (b)

through (n) of section 8 of, the Federal Deposit Insurance Act \74\ in

the same manner and to the same extent as if the SIDCO were an insured

depository institution and the Commission were the appropriate Federal

banking agency for such insured depository institution. This special

authority is codified in proposed Sec. 39.31.

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\74\ 12 U.S.C. 1818.

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C. Additional Amendments

1. Technical Amendments To Reorganize Part 39

The Commission is proposing to reorganize part 39 into three

subparts. Subpart A would contain general provisions applicable to all

DCOs including definitions, procedures for DCO registration, and

procedures for implementation of DCO rules and clearing new products.

Subpart B would contain the regulations that codify and implement the

DCO core principles. The regulations in subpart B would apply to all

DCOs except to the extent that a DCO is a SIDCO and there are

superseding provisions in subpart C. Subpart C would contain

regulations that apply only to SIDCOs. As proposed, for purposes of

clarity, each subpart would have an introductory section stating the

scope of the subpart.\75\

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\75\ See proposed subpart A, Sec. 39.1; proposed subpart B,

Sec. 39.9; and proposed subpart C, Sec. 39.28.

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The Commission is proposing to amend Sec. 39.1 to update the

citation to the definition of the term ``derivatives clearing

organization'' and to restate the scope of part 39 to reflect the

reorganization of part 39 into subparts A, B, and C.

The Commission is additionally proposing to remove Sec. 39.2,

which exempts DCOs from all Commission regulations except those

explicitly enumerated in the exemption.\76\ The Commission believes

that this exemption is inconsistent with the regulatory approach

established by the Dodd-Frank Act. Moreover, a preliminary review

indicates that by eliminating the exemption, DCOs would be subject to

only one additional regulation of significance, Sec. 1.49

(denomination of customer funds and location of depositories).\77\

Section 1.49 was promulgated after Sec. 39.2 was adopted. It is

noteworthy that, notwithstanding Sec. 39.2, the Commission and the

industry have proceeded as if the requirements of Sec. 1.49 applied to

DCOs. The absence of a reference in Sec. 39.2 to Sec. 1.49 in the

exemption was an oversight. This situation points out the unintended

consequences of attempting to carve out ``reverse'' exemptions in this

manner, and the Commission believes it is a better regulatory policy to

amend the terms of inapplicable regulations or rescind them, as

appropriate, rather than attempt to maintain an up-to-date list of

applicable regulations.

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\76\ Section 39.2 provides, in relevant part, as follows:

A derivatives clearing organization and the clearing of

agreements, contracts and transactions on a derivatives clearing

organization are exempt from all Commission regulations except for

the requirements of this part 39, Sec. Sec. 1.3, 1.12(f)(1), 1.20,

1.24, 1.25, 1.26, 1.27, 1.29, 1.31, 1.36, 1.38(b), part 40 and part

190 of this chapter, and as applicable to the agreement, contract,

or transaction cleared, parts 15 through 18 of this chapter.

\77\ The other provisions relate to governance and conflicts of

interest issues, and may be superseded by pending rules. See Sec.

1.59 (activities of self-regulatory organization employees,

governing board members, committee members, and consultants); Sec.

1.63 (service on self-regulatory organization governing boards or

committees by persons with disciplinary histories); and Sec. 1.69

(voting by interested members of self-regulatory organization

governing boards and various committees).

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[[Page 3715]]

In place of the exemption, the Commission proposes to insert the

definitions proposed as Sec. 39.1(b) in an earlier proposed

rulemaking.\78\ Section 39.1(a), as proposed in the earlier rulemaking,

would be redesignated as Sec. 39.1.\79\

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\78\ See 75 FR at 77585-86.

\79\ Id.

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2. Supplemental Provisions for Proposed Sec. 39.19

The Commission recently proposed a new Sec. 39.19(c) which would

require certain reports to be made by a DCO to the Commission.\80\

Where the primary reporting requirement would be specified elsewhere in

the Commission's regulations, the Commission intends to cross-reference

these requirements in Sec. 39.19. The following are recently proposed

reporting requirements for which the Commission proposes to add a

cross-reference in proposed Sec. 39.19:

---------------------------------------------------------------------------

\80\ See 75 FR at 78194.

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(1) The Commission recently proposed a new Sec. 39.24(b)(4) which

would require each DCO to collect and verify certain information

related to governance fitness standards and provide that information to

the Commission on an annual basis.\81\ By this notice, the Commission

is proposing a new Sec. 39.19(c)(3)(iii) \82\ under which a DCO would

be required to satisfy the annual reporting requirements of Sec.

39.24(b)(4). The Commission also is proposing to amend proposed Sec.

39.24(b)(4) to require the report to be submitted in accordance with

the requirements of proposed Sec. 39.19(c)(3)(iv) (which would require

the report to be filed not more than 90 days after the end of the DCO's

fiscal year).

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\81\ See 76 FR 722, 736 (Jan. 6, 2011).

\82\ The Commission is proposing to redesignate what is

currently proposed as Sec. 39.19(c)(3)(iii) as Sec.

39.19(c)(3)(iv). This proposed regulation currently states:

The reports required by this paragraph (c)(3) shall be submitted

concurrently to the Commission not more than 90 days after the end

of the derivatives clearing organization's fiscal year; provided

that, a derivatives clearing organization may request from the

Commission an extension of time to submit either report, provided

the derivatives clearing organization's failure to submit the report

in a timely manner could not be avoided without unreasonable effort

or expense. Extensions of the deadline will be granted at the

discretion of the Commission.

---------------------------------------------------------------------------

(2) The Commission recently proposed a new Sec. 39.25(b) under

which a DCO would be required to submit a report to the Commission in

the event that the Board of Directors of a DCO rejects a recommendation

or supersedes an action of the Risk Management Committee, or the Risk

Management Committee rejects a recommendation or supersedes an action

of its subcommittee.\83\ The report would have to include the following

details: (i) The recommendation or action of the Risk Management

Committee (or subcommittee thereof); (ii) the rationale for such

recommendation or action; (iii) the rationale of the Board of Directors

(or the Risk Management Committee, if applicable) for rejecting such

recommendation or superseding such action; and (iv) the course of

action that the Board of Directors (or the Risk Management Committee,

if applicable) decided to take contrary to such recommendation or

action. By this notice, the Commission is proposing a new Sec.

39.19(c)(4)(xvi) under which a DCO would be required to report to the

Commission as required by Sec. 39.25(b). The Commission also is

proposing to amend proposed Sec. 39.25(b) to require the report to be

submitted to the Commission within 30 days of such a rejection or

supersession.

---------------------------------------------------------------------------

\83\ See supra n.81.

---------------------------------------------------------------------------

(3) The Commission also recently proposed a new Sec.

40.9(b)(1)(iii) under which a DCO (as well as other registered

entities) would have to submit to the Commission, within 30 days after

the election of its Board of Directors, certain information regarding

the Board of Directors.\84\ By this notice, the Commission is proposing

a new Sec. 39.19(c)(4)(xvii) under which a DCO would have to submit to

the Commission a report in accordance with the requirements of proposed

Sec. 40.9(b)(1)(iii).

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\84\ Id.

---------------------------------------------------------------------------

(4) In this notice, the Commission is proposing that a DCO notify

staff of the Division of Clearing and Intermediary Oversight of certain

exceptional events and certain planned changes related to system

safeguards (Core Principle I).\85\ The Commission is proposing a new

Sec. 39.19(c)(4)(xviii) under which a DCO would be required to notify

staff of the Division of Clearing and Intermediary Oversight of

exceptional events related to system safeguards in accordance with

proposed Sec. 39.18(g) and of planned changes related to system

safeguards in accordance with proposed Sec. 39.18(h).

---------------------------------------------------------------------------

\85\ See supra, section II.B.6.a.vii.

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3. Technical Amendments to Proposed Sec. 39.21

The Commission recently proposed a new Sec. 39.24(a)(2) which

would require each DCO to make available to the public and to the

relevant authorities, including the Commission, a description of the

manner in which its governance arrangements permit the consideration of

the views of its owners, whether voting or non-voting, and its

participants, including, without limitation, clearing members and

customers.\86\ The Commission also recently proposed Sec. 40.9(d)

which would require a DCO (as well as other registered entities) to, at

a minimum, make certain information available to the public and

relevant authorities, including the Commission.\87\

---------------------------------------------------------------------------

\86\ See 76 FR at 735.

\87\ Id. at 736.

---------------------------------------------------------------------------

The Commission also recently proposed a new Sec. 39.21(c) which

lists certain information a DCO would be required to disclose publicly

and to the Commission.\88\ By this notice, the Commission is proposing

to amend proposed Sec. 39.21(c) to cross-reference the transparency

requirements of proposed Sec. Sec. 39.24(a)(2) and 40.9(d).

---------------------------------------------------------------------------

\88\ See 75 FR at 78197.

---------------------------------------------------------------------------

III. Effective Date

The Commission is proposing that the requirements proposed in this

notice become effective 180 days from the date the final rules are

published in the Federal Register, with the exception of (1) the system

safeguard requirements that would be applicable to SIDCOs, set forth in

proposed Sec. 39.30, for which the proposed effective date is

discussed in section II.B.6(b)(v) above, and (2) the provisions of

Sec. 39.15(b)(2) relating to the commingling of customer futures,

options on futures, and swaps positions, which would become effective

30 days after the date of publication of the final rules. The

provisions relating to commingling of customer funds do not require

additional time for planning and implementation because they relate to

a voluntary action on the part of a DCO.

The Commission believes that a period of 180 days would give DCOs

adequate time to implement any additional technology and enhanced

procedures that may be necessary to fulfill the proposed requirements

related to participant and product eligibility, risk management,

settlement procedures, treatment of funds, default rules and

procedures, and system safeguards (insofar as they would apply to all

DCOs). The Commission requests comment on whether 180 days is an

appropriate time frame for compliance with these proposed rules. The

Commission further requests comment on possible alternative effective

dates and the basis for any such alternative dates.

IV. Section 4(c)

Section 4(c) of the CEA provides that, in order to promote

responsible

[[Page 3716]]

economic or financial innovation and fair competition, the Commission,

by rule, regulation or order, after notice and opportunity for hearing,

may exempt any agreement, contract, or transaction, or class thereof,

including any person or class of persons offering, entering into,

rendering advice or rendering other services with respect to, the

agreement, contract, or transaction, from the contract market

designation requirement of section 4(a) of the CEA, or any other

provision of the CEA other than certain enumerated provisions, if the

Commission determines that the exemption would be consistent with the

public interest.\89\

---------------------------------------------------------------------------

\89\ 7 U.S.C. 6(c).

---------------------------------------------------------------------------

Proposed Sec. Sec. 39.15(b)(2)(i) and 39.15(b)(2)(ii) would be

promulgated under Core Principle F, which sets forth requirements for

treatment of funds by a DCO.\90\ Proper treatment of customer funds

requires, among other things, segregation of customer money, securities

and property received to margin, guarantee, or secure positions in

futures or options on futures, in an account subject to section 4d(a)

of the CEA (i.e., a futures account), and segregation of customer

money, securities and property received to margin, guarantee, or secure

positions in cleared swaps, in an account subject to section 4d(f) of

the CEA (i.e., a cleared swap account). Customer funds required to be

held in a futures account cannot be commingled with non-customer funds

and cannot be held in an account other than an account subject to

section 4d(a), absent Commission approval in the form of a rule,

regulation or order. Section 4d(f) of the CEA mirrors these limitations

as applied to customer positions in cleared swaps.

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\90\ Section 5b(c)(2)(F) of the CEA; 7 U.S.C. 7a-1(c)(2)(F).

---------------------------------------------------------------------------

In proposing a regulation that would permit futures and options on

futures to be carried in a cleared swap account if the Commission

approves DCO rules providing for such treatment of funds, and in

proposing a regulation that would permit cleared swap positions to be

carried in a futures account if the Commission issues an order

permitting such treatment of funds, the Commission is exercising its

authority to grant an exemption under section 4(c) of the CEA. In this

regard, the DCO and its clearing members would be exempt from complying

with the segregation requirements of section 4d(a) when holding

customer segregated funds in a cleared swap account subject to section

4d(f) of the CEA, instead of a futures account; and similarly, the DCO

and its clearing members would be exempt from complying with the

segregation requirements of section 4d(f) when holding customer funds

related to cleared swap positions in a futures account subject to

section 4d(a) of the CEA, instead of a cleared swap account.

While this rule-based exemption would streamline the approval

process for commingling customer positions in futures, options on

futures, and cleared swaps, the Commission would still conduct a case-

by case analysis when permitting cleared swaps to be carried in a

futures account, in keeping with its past practice in issuing orders

under section 4d. The Commission believes that there can be benefits to

commingling customer positions in futures, options on futures, and

cleared swaps, primarily in the area of greater capital efficiency due

to margin reductions for correlated positions. The Commission views

this form of portfolio margining as a positive step toward financial

innovation within a framework of responsible oversight, and it believes

that the public can benefit from such innovation.

In light of the foregoing, the Commission believes that the

adoption of proposed Sec. Sec. 39.15(b)(2)(i) and 39.15(b)(2)(ii)

would promote responsible economic and financial innovation and fair

competition, and would be consistent with the ``public interest,'' as

that term is used in section 4(c) of the CEA.

The Commission solicits public comment on whether the proposed

regulation satisfies the requirements for exemption under section 4(c)

of the CEA.

V. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires that agencies

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 respecting the impact.\91\

The rules proposed by the Commission will affect only DCOs (some of

which will be designated as SIDCOs). 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.\92\ The Commission has previously

determined that DCOs are not small entities for the purpose of the

RFA.\93\ Accordingly, the Chairman, on behalf of the Commission, hereby

certifies pursuant to 5 U.S.C. 605(b) that the proposed rules will not

have a significant economic impact on a substantial number of small

entities.

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\91\ 5 U.S.C. 601 et seq.

\92\ 47 FR 18618 (Apr. 30, 1982).

\93\ See 66 FR 45605, 45609 (Aug. 29, 2001).

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B. Paperwork Reduction Act

The Paperwork Reduction Act (``PRA'') \94\ imposes certain

requirements on Federal agencies in connection with their conducting or

sponsoring any collection of information as defined by the PRA. An

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. OMB has not yet assigned a control number to the

new collection.

---------------------------------------------------------------------------

\94\ 44 U.S.C. 3501 et seq.

---------------------------------------------------------------------------

This proposed rulemaking would result in new collection of

information requirements within the meaning of the PRA. The Commission

therefore is submitting this proposal to the Office of Management and

Budget (``OMB'') for review. If adopted, responses to this collection

of information would be mandatory.

The Commission will protect proprietary information according to

FOIA 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.'' 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.

1. Information Provided by Reporting Entities/Persons

The proposed regulations would require each respondent to maintain

records of all activities related to its business as a DCO, including

all information required to be created, generated, or reported under

part 39, including but not limited to the results of and methodology

used for all tests, reviews, and calculations.

The Commission staff estimates this would result in a total of one

response per respondent on an annual basis and that respondents could

expend up to $500 annually, based on an hourly rate of $10, to comply

with the proposed regulations. This would result in an aggregated cost

of $6,000 per annum (12 respondents x $500).

[[Page 3717]]

The proposed regulations also would require the submission of an

application form by entities seeking to register as DCOs. The applicant

burden is estimated to take, on average, approximately 400 hours, with

an hourly rate ranging from $75-$400, for a total estimated cost of

$100,000 per application. These estimates include the time needed to

review instructions and to develop, acquire, install, and utilize

technology and systems for the purposes of collecting, validating, and

verifying information. Staff estimates that three entities will seek to

register as a DCO on an annual basis.

2. Information Collection Comments

The Commission invites the public and other Federal agencies to

comment on any aspect of the reporting and recordkeeping burdens

discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission

solicits comment in order to: (i) Evaluate whether the proposed

collection of information is necessary for the proper performance of

the functions of the Commission, including whether the information will

have practical utility; (ii) evaluate the accuracy of the Commission's

estimate of the burden of the proposed collection of information; (iii)

determine whether there are ways to enhance the quality, utility, and

clarity of the information to be collected; and (iv) minimize the

burden of the collection of information on those who are to respond,

including through the use of automated collection techniques or other

forms of information technology.

Comments may be submitted directly to the Office of Information and

Regulatory Affairs, by fax at (202) 395-6566 or by e-mail at

[email protected]. Please provide the Commission with a copy

of submitted comments so that all 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 having its full effect if OMB receives it within 30 days of

publication.

C. Cost-Benefit Analysis

Section 15(a) of the CEA requires the Commission to consider the

costs and benefits of its actions before issuing a rulemaking under the

CEA. By its terms, section 15(a) does not require the Commission to

quantify the costs and benefits of a rule or to determine whether the

benefits of the rulemaking outweigh its costs; rather, it requires that

the Commission ``consider'' the costs and benefits of its action.

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 futures markets; (3) price

discovery; (4) sound risk management practices; and (5) other public

interest considerations. The Commission may in its discretion give

greater weight to any one of the five enumerated areas and could in its

discretion determine that, notwithstanding its costs, a particular

regulation is necessary or appropriate to protect the public interest

or to effectuate any of the provisions or to accomplish any of the

purposes of the CEA.

Summary of proposed requirements. The proposed regulations would

implement the participant and product eligibility, risk management,

settlement procedures, treatment of funds, default procedures and

system safeguards core principles for DCOs and would adopt an

application form for DCO registration under the CEA, as amended by the

Dodd-Frank Act.

Costs. With respect to costs, the Commission has determined that

the costs to market participants and the public if these regulations

are not adopted are substantial. Significantly, without these

regulations to ensure that DCOs fully comply with the core principles

of participant and product eligibility, risk management, settlement

procedures, treatment of funds, default procedures and system

safeguards, sound risk management and the financial integrity of the

futures and swap markets would not be enhanced, to the detriment of

market participants and the public.

The Commission has also determined that the costs of the new

reporting requirements imposed on DCOs will consist primarily of

recordkeeping requirements, which the Commission estimates will cost

DCOs $500 annually. For purposes of this rulemaking, the estimated

reporting and recordkeeping costs do not include other costs addressed

by other rulemakings. However, the costs do take into account the costs

of implementing certain reporting requirements which many DCOs already

have in place, and thus, the actual costs to many DCOs may be far less

than the Commission's estimates.

Benefits. With respect to benefits, the Commission has determined

that the benefits of the proposed rules are many and substantial. DCO

registration applications will be processed transparently and

efficiently, making clearing services available to the futures and swap

markets in order to protect the integrity of these markets through the

sound risk management practices associated with clearing and the

efficiency that competition between clearinghouses will foster. The

protection of market participants, financial integrity of the markets,

and sound risk management will further be promoted by the compliance of

each DCO with the rules and standards that are being adopted to

implement the core principles, notably those associated with

participant and product eligibility, risk management, settlement

procedures, treatment of funds, default procedures and system

safeguards.

The Commission has also determined that the recordkeeping

requirements allow for making certain records available for Commission

inspection, which helps further the goals of the reporting requirements

and is necessary for the Commission to effectively monitor a DCO's

financial integrity and compliance with the CEA and Commission

regulations.

Public Comment. The Commission invites public comment on its cost-

benefit considerations. Commenters are also invited to submit any data

or other information that they may have quantifying or qualifying the

costs and benefits of the proposal with their comment letters.

List of Subjects in 17 CFR Part 39

Commodity futures, Participant and product eligibility, Risk

management, Settlement procedures, Treatment of funds, Default rules

and procedures, System safeguards, Enforcement authority application

form.

In light of the foregoing, the Commission hereby proposes to amend

part 39 of Title 17 of the Code of Federal Regulations as follows:

PART 39--DERIVATIVES CLEARING ORGANIZATIONS

1. Revise the authority citation for part 39 to read as follows:

Authority: 7 USC 2, 5, 6, 6d, 7a-1, 7a-2, and 7b as amended by

the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub.

L. 111-203, 124 Stat. 1376.

[[Page 3718]]

Subpart A--General Provisions Applicable to Derivatives Clearing

Organizations

2. Designate existing Sec. Sec. 39.1 through 39.7 as subpart A and

add a subpart heading to read as set forth above.

3. Revise Sec. 39.1 to read as follows:

Sec. 39.1 Scope.

The provisions of this subpart A apply to any derivatives clearing

organization, as defined under section 1a(15) of the Act and Sec.

1.3(d) of this chapter, which is registered or deemed to be registered

with the Commission as a derivatives clearing organization, is required

to register as such with the Commission pursuant to section 5b(a) of

the Act, or which voluntarily registers as such with the Commission

pursuant to section 5b(b) or otherwise.

4. Revise Sec. 39.2 to read as follows:

Sec. 39.2 Definitions.

For the purposes of this part,

Back test means a test that compares a derivatives clearing

organization's initial margin requirements with historical price

changes to determine the extent of actual margin coverage.

Compliance policies and procedures means all policies, procedures,

codes, including a code of ethics, safeguards, rules, programs, and

internal controls that are required to be adopted or established by a

derivatives clearing organization pursuant to the Act, Commission

regulations, or orders, or that otherwise facilitate compliance with

the Act and Commission regulations.

Customer account or customer origin means a clearing member's

account held on behalf of customers, as defined in Sec. 1.3(k) of this

chapter. A customer account is also a futures account, as that term is

defined by Sec. 1.3(vv) of this chapter.

House account or house origin means a clearing member's combined

proprietary accounts, as defined in Sec. 1.3(y) of this chapter.

Key personnel means derivatives clearing organization personnel who

play a significant role in the operations of the derivatives clearing

organization, the provision of clearing and settlement services, risk

management, or oversight of compliance with the Act and Commission

regulations and orders. Key personnel include, but are not limited to,

those persons who are or perform the functions of any of the following:

chief executive officer; president; Chief compliance officer; chief

operating officer; Chief risk officer; chief financial officer; chief

technology officer; and emergency contacts or persons who are

responsible for business continuity or disaster recovery planning or

program execution.

Stress test means a test that compares the impact of a potential

price move, change in option volatility, or change in other inputs that

affect the value of a position, to the financial resources of a

derivatives clearing organization, clearing member, or large trader, to

determine the adequacy of such financial resources.

Systemically important derivatives clearing organization means a

financial market utility that is a derivatives clearing organization

registered under section 5b of the Act (7 U.S.C. 7a-1), which has been

designated by the Financial Stability Oversight Council to be

systemically important.

5. Amend Sec. 39.3 by revising paragraphs (a)(2), (a)(3), (b),

(c), (d) and (e) and by adding paragraphs (a)(4) and (a)(5) to read as

follows:

Sec. 39.3 Procedures for registration.

(a) * * *

(2) Application. Any person seeking to register as a derivatives

clearing organization, any applicant amending its pending application,

or any registered derivatives clearing organization seeking to amend

its order of registration (applicant), shall submit to the Commission a

completed Form DCO, which shall include a cover sheet, all applicable

exhibits, and any supplemental materials, including amendments thereto,

as provided in appendix A to this part 39 (application). The Commission

will not commence processing an application unless the applicant has

filed the application as required by this section. Failure to file a

completed application will preclude the Commission from determining

that an application is materially complete, as provided in section 6(a)

of the Act. Upon its own initiative, an applicant may file with its

completed application additional information that may be necessary or

helpful to the Commission in processing the application.

(3) Submission of supplemental information. The filing of a

completed application is a minimum requirement and does not create a

presumption that the application is materially complete or that

supplemental information will not be required. At any time during the

application review process, the Commission may request that the

applicant submit supplemental information in order for the Commission

to process the application. The applicant shall file electronically

such supplemental information with the Secretary of the Commission in

the form and manner provided by the Commission.

(4) Application amendments. An applicant shall promptly amend its

application if it discovers a material omission or error, or if there

is a material change in the information provided to the Commission in

the application or other information provided in connection with the

application.

(5) Public information. The following sections of all applications

to become a registered derivatives clearing organization will be

public: first page of the Form DCO cover sheet, proposed rules,

regulatory compliance chart, narrative summary of proposed clearing

activities, documents establishing the applicant's legal status,

documents setting forth the applicant's corporate and governance

structure, and any other part of the application not covered by a

request for confidential treatment, subject to Sec. 145.9 of this

chapter.

(b) Stay of application review. (1) The Commission may stay the

running of the 180-day review period if an application is materially

incomplete, in accordance with section 6(a) of the Act.

(2) Delegation of authority. (i) The Commission hereby delegates,

until it orders otherwise, to the Director of the Division of Clearing

and Intermediary Oversight or the Director's designee, with the

concurrence of the General Counsel or the General Counsel's designee,

the authority to notify an applicant seeking registration under section

6(a) of the Act that the application is materially incomplete and the

running of the 180-day period is stayed.

(ii) The Director of the Division of Clearing and Intermediary

Oversight may submit to the Commission for its consideration any matter

which has been delegated in this paragraph.

(iii) Nothing in this paragraph prohibits the Commission, at its

election, from exercising the authority delegated in paragraph

(b)(2)(i) of this section.

(c) Withdrawal of application for registration. An applicant for

registration may withdraw its application submitted pursuant to

paragraph (a) of this section by filing electronically such a request

with the Secretary of the Commission in the form and manner provided by

the Commission. Withdrawal of an application for registration shall not

affect any action taken or to be taken by the Commission based upon

actions, activities, or events occurring during the time that the

application for registration was pending with the Commission.

[[Page 3719]]

(d) Reinstatement of dormant registration. Before listing or

relisting products for clearing, a dormant registered derivatives

clearing organization as defined in Sec. 40.1 of this chapter must

reinstate its registration under the procedures of paragraph (a) of

this section; provided, however, that an application for reinstatement

may rely upon previously submitted materials that still pertain to, and

accurately describe, current conditions.

(e) Request for vacation of registration. A registered derivatives

clearing organization may vacate its registration under section 7 of

the Act by filing electronically such a request with the Secretary of

the Commission in the form and manner provided by the Commission.

Vacation of registration shall not affect any action taken or to be

taken by the Commission based upon actions, activities or events

occurring during the time that the entity was registered by the

Commission.

* * * * *

Sec. 39.7 [Redesignated as Sec. 39.8]

6. Redesignate Sec. 39.7 as Sec. 39.8.

Sec. 39.6 [Redesignated as Sec. 39.7]

7. Redesignate Sec. 39.6 as Sec. 39.7.

8. Add subpart B to read as follows:

Subpart B--Compliance with Core Principles

Sec.

39.9 Scope.

39.10 [Reserved]

39.11 [Reserved]

39.12 Participant and product eligibility.

39.13 Risk management.

39.14 Settlement procedures.

39.15 Treatment of funds.

39.16 Default rules and procedures.

39.17 [Reserved]

39.18 System safeguards.

39.19 Reporting.

39.20 [Reserved]

39.21 Public information.

39.22 [Reserved]

39.23 [Reserved]

39.24 Governance fitness standards.

39.25 Conflicts of interest.

Subpart B--Compliance with Core Principles

Sec. 39.9 Scope.

Except as otherwise provided with respect to systemically important

derivatives clearing organizations subject to subpart C of this part,

the provisions of this subpart B apply to any derivatives clearing

organization, as defined under section 1a(15) of the Act and Sec.

1.3(d) of this chapter, which is registered or deemed to be registered

with the Commission as a derivatives clearing organization, is required

to register as such with the Commission pursuant to section 5b(a) of

the Act, or which voluntarily registers as such with the Commission

pursuant to section 5b(b) or otherwise.

Sec. 39.10 [Reserved]

Sec. 39.11 [Reserved]

Sec. 39.12 Participant and product eligibility.

(a) Participant eligibility. A derivatives clearing organization

shall establish appropriate admission and continuing participation

requirements for clearing members of the derivatives clearing

organization that are objective, publicly disclosed, and risk-based.

(1) Fair and open access for participation. The participation

requirements shall permit fair and open access;

(i) A derivatives clearing organization shall not adopt restrictive

clearing member standards if less restrictive requirements that would

not materially increase risk to the derivatives clearing organization

or clearing members could be adopted;

(ii) A derivatives clearing organization shall allow all market

participants who satisfy participation requirements to become clearing

members;

(iii) A derivatives clearing organization shall not exclude or

limit clearing membership of certain types of market participants

unless the derivatives clearing organization can demonstrate that the

restriction is necessary to address credit risk or deficiencies in the

participants' operational capabilities that would prevent them from

fulfilling their obligations as clearing members.

(iv) A derivatives clearing organization shall not require that

clearing members must be swap dealers.

(v) A derivatives clearing organization shall not require that

clearing members maintain a swap portfolio of any particular size, or

that clearing members meet a swap transaction volume threshold.

(2) Financial resources. (i) The participation requirements shall

require clearing members to have access to sufficient financial

resources to meet obligations arising from participation in the

derivatives clearing organization in extreme but plausible market

conditions. The financial resources may include, but are not limited

to, a clearing member's capital, a guarantee from the clearing member's

parent, or a credit facility funding arrangement. For purposes of this

paragraph, ``capital'' means adjusted net capital as defined in Sec.

1.17 of this chapter, for futures commission merchants, and net capital

as defined in Sec. 15c3-1 of this title, for broker-dealers, or any

similar risk adjusted capital calculation for all other prospective

clearing members.

(ii) The participation requirements shall set forth capital

requirements that are based on objective, transparent, and commonly

accepted standards that appropriately match capital to risk. Capital

requirements shall be scalable so that they are proportional to the

risks posed by clearing members.

(iii) A derivatives clearing organization shall not set a minimum

capital requirement of more than $50 million for any person that seeks

to become a clearing member in order to clear swaps.

(3) Operational requirements. The participation requirements shall

require clearing members to have adequate operational capacity to meet

obligations arising from participation in the derivatives clearing

organization. The requirements shall include, but are not limited to:

the ability to process expected volumes and values of transactions

cleared by a clearing member within required time frames, including at

peak times and on peak days; the ability to fulfill collateral,

payment, and delivery obligations imposed by the derivatives clearing

organization; and the ability to participate in default management

activities under the rules of the derivatives clearing organization and

in accordance with Sec. 39.16 of this part.

(4) Monitoring. A derivatives clearing organization shall establish

and implement procedures to verify, on an ongoing basis, the compliance

of each clearing member with each participation requirement of the

derivatives clearing organization.

(5) Reporting. (i) A derivatives clearing organization shall

require all clearing members, including those that are not futures

commission merchants, to file periodic financial reports with the

derivatives clearing organization which contain any financial

information that the derivatives clearing organization determines is

necessary to assess whether participation requirements are met on an

ongoing basis. A derivatives clearing organization shall require

clearing members that are futures commission merchants to file the

financial reports that are specified in Sec. 1.10 of this chapter with

the derivatives clearing organization. The derivatives clearing

organization shall review all such financial reports for risk

management purposes. A derivatives clearing organization shall also

require clearing members that are not futures commission merchants to

make such periodic financial reports available to

[[Page 3720]]

the Commission upon the Commission's request.

(ii) A derivatives clearing organization shall adopt rules that

require clearing members to provide to the derivatives clearing

organization, in a timely manner, information that concerns any

financial or business developments that may materially affect the

clearing members' ability to continue to comply with participation

requirements.

(6) Enforcement. A derivatives clearing organization shall have the

ability to enforce compliance with its participation requirements and

shall establish procedures for the suspension and orderly removal of

clearing members that no longer meet the requirements.

(b) Product eligibility. (1) A derivatives clearing organization

shall establish appropriate requirements for determining the

eligibility of agreements, contracts, or transactions submitted to the

derivatives clearing organization for clearing, taking into account the

derivatives clearing organization's ability to manage the risks

associated with such agreements, contracts, or transactions. Factors to

be considered in determining product eligibility include, but are not

limited to:

(i) Trading volume;

(ii) Liquidity;

(iii) Availability of reliable prices;

(iv) Ability of market participants to use portfolio compression

with respect to a particular swap product;

(v) Ability of the derivatives clearing organization and clearing

members to gain access to the relevant market for purposes of creating

and liquidating positions;

(vi) Ability of the derivatives clearing organization to measure

risk for purposes of setting margin requirements; and

(vii) Operational capacity of the derivatives clearing organization

and clearing members to address any unique risk characteristics of a

product.

(2) A derivatives clearing organization shall adopt rules providing

that all swaps with the same terms and conditions submitted to the

derivatives clearing organization for clearing are economically

equivalent within the derivatives clearing organization and may be

offset with each other within the derivatives clearing organization. A

derivatives clearing organization shall also provide for non-

discriminatory clearing of a swap executed bilaterally or on or subject

to the rules of an unaffiliated designated contract market or swap

execution facility.

(3) A derivatives clearing organization shall select contract unit

sizes that maximize liquidity, open access, and risk management. To the

extent appropriate to further these objectives, a derivatives clearing

organization shall select contract units for clearing purposes that are

smaller than the contract units in which trades submitted for clearing

were executed.

(4) A derivatives clearing organization that clears swaps shall

have rules providing that, upon acceptance of a swap by the derivatives

clearing organization for clearing:

(i) The original swap is extinguished;

(ii) The original swap is replaced by equal and opposite swaps

between clearing members and the derivatives clearing organization;

(iii) All terms of the cleared swaps must conform to templates

established under derivatives clearing organization rules; and

(iv) If a swap is cleared by a clearing member on behalf of a

customer, all terms of the swap, as carried in the customer account on

the books of the clearing member, must conform to the terms of the

cleared swap established under the derivatives clearing organization's

rules.

Sec. 39.13 Risk management.

(a) In general. A derivatives clearing organization shall ensure

that it possesses the ability to manage the risks associated with

discharging the responsibilities of the derivatives clearing

organization through the use of appropriate tools and procedures.

(b) Documentation requirement. A derivatives clearing organization

shall establish and maintain written policies, procedures, and

controls, approved by its Board of Directors, which establish an

appropriate risk management framework that, at a minimum, clearly

identifies and documents the range of risks to which the derivatives

clearing organization is exposed, addresses the monitoring and

management of the entirety of those risks, and provides a mechanism for

internal audit. The risk management framework shall be regularly

reviewed and updated as necessary.

(c) Chief risk officer. A derivatives clearing organization shall

have a chief risk officer who shall be responsible for implementing the

risk management framework, including the procedures, policies and

controls described in paragraph (b) of this section, and for making

appropriate recommendations to the derivatives clearing organization's

Risk Management Committee or Board of Directors, as applicable,

regarding the derivatives clearing organization's risk management

functions.

(d) [Reserved]

(e) Measurement of credit exposure. A derivatives clearing

organization shall:

(1) Measure its credit exposure to each clearing member and mark to

market such clearing member's open positions at least once each

business day; and

(2) Monitor its credit exposure to each clearing member

periodically during each business day.

(f) Limitation of exposure to potential losses from defaults. A

derivatives clearing organization, through margin requirements and

other risk control mechanisms, shall limit its exposure to potential

losses from defaults by its clearing members to ensure that:

(1) The operations of the derivatives clearing organization would

not be disrupted; and

(2) Non-defaulting clearing members would not be exposed to losses

that nondefaulting clearing members cannot anticipate or control.

(g) Margin requirements--(1) In general. The initial margin that a

derivatives clearing organization requires from each clearing member

shall be sufficient to cover potential exposures in normal market

conditions. Each model and parameter used in setting initial margin

requirements shall be risk-based and reviewed on a regular basis.

(2) Methodology and coverage. (i) A derivatives clearing

organization shall establish initial margin requirements that are

commensurate with the risks of each product and portfolio, including

any unique characteristics of, or risks associated with, particular

products or portfolios. A derivatives clearing organization that clears

credit default swaps shall appropriately address jump-to-default risk

in setting initial margins.

(ii) A derivatives clearing organization shall use models that

generate initial margin requirements sufficient to cover the

derivatives clearing organization's potential future exposures to

clearing members based on price movements in the interval between the

last collection of variation margin and the time within which the

derivatives clearing organization estimates that it would be able to

liquidate a defaulting clearing member's positions (liquidation time);

provided, however, that a derivatives clearing organization shall use a

liquidation time that is a minimum of five business days for cleared

swaps that are not executed on a designated contract market, whether

the swaps are carried in a customer account subject to section 4d(a) or

4d(f) of the Act, or carried in a house account, and a liquidation time

that is a minimum of one business day for all other products that it

clears, and shall use longer

[[Page 3721]]

liquidation times, if appropriate, based on the unique characteristics

of particular products or portfolios.

(iii) The actual coverage of the initial margin requirements

produced by such models, along with projected measures of the models'

performance, shall meet an established confidence level of at least

99%, based on data from an appropriate historic time period, for:

(A) Each product (that is margined on a product basis);

(B) Each spread within or between products for which there is a

defined spread margin rate, as described in paragraph (g)(4) of this

section;

(C) Each account held by a clearing member at the DCO, by customer

origin and house origin; and

(D) Each swap portfolio, by beneficial owner.

(iv) A derivatives clearing organization shall determine the

appropriate historic time period based on the characteristics,

including volatility patterns, as applicable, of each product, spread,

account, or portfolio.

(3) Independent validation. A derivatives clearing organization's

systems for generating initial margin requirements, including its

theoretical models, must be reviewed and validated by a qualified and

independent party, on a regular basis.

(4) Spread margins. (i) A derivatives clearing organization may

allow reductions in initial margin requirements for related positions

(spread margins) if the price risks with respect to such positions are

significantly and reliably correlated. The price risks of different

positions will only be considered to be reliably correlated if there is

a theoretical basis for the correlation in addition to an exhibited

statistical correlation. That theoretical basis may include, but is not

limited to, the following:

(A) The products on which the positions are based are complements

of, or substitutes for, each other;

(B) One product is a significant input into the other product(s);

(C) The products share a significant common input; or

(D) The prices of the products are influenced by common external

factors.

(ii) A derivatives clearing organization shall regularly review its

spread margins and the correlations on which they are based.

(5) Price data. A derivatives clearing organization shall have a

reliable source of timely price data in order to measure the

derivatives clearing organization's credit exposure accurately. A

derivatives clearing organization shall also have written procedures

and sound valuation models for addressing circumstances where pricing

data is not readily available or reliable.

(6) Daily review. On a daily basis, a derivatives clearing

organization shall determine the adequacy of its initial margin

requirements for each product (that is margined on a product basis).

(7) Back tests. A derivatives clearing organization shall conduct

back tests, as defined in Sec. 39.2 of this part, using historical

price changes based on a time period that is equivalent in length to

the historic time period used by the applicable margin model for

establishing the confidence level described in paragraph (g)(2) of this

section or a longer time period, unless another time period is

specified by this paragraph.

(i) On a daily basis, a derivatives clearing organization shall

conduct back tests with respect to products that are experiencing

significant market volatility, to test the adequacy of its initial

margin requirements and spread margin requirements for such products

that are margined on a product basis.

(ii) On at least a monthly basis, a derivatives clearing

organization shall conduct back tests to test the adequacy of its

initial margin requirements and spread margin requirements for each

product that is margined on a product basis.

(iii) On at least a monthly basis, a derivatives clearing

organization shall conduct back tests to test the adequacy of its

initial margin requirements for each account held by a clearing member

at the DCO, by origin, house and customer, and each swap portfolio, by

beneficial owner, over at least the previous 30 days.

(8) Customer margin--(i) Gross margin. A derivatives clearing

organization shall collect initial margin on a gross basis for each

clearing member's customer account equal to the sum of the initial

margin amounts that would be required by the derivatives clearing

organization for each individual customer within that account if each

individual customer were a clearing member. A derivatives clearing

organization may not net positions of different customers against one

another. A derivatives clearing organization may collect initial margin

for its clearing members' house accounts on a net basis.

(ii) Customer initial margin requirements. A derivatives clearing

organization shall require its clearing members to collect customer

initial margin, as defined in Sec. 1.3 of this chapter, from their

customers, for non-hedge positions, at a level that is greater than

100% of the derivatives clearing organization's initial margin

requirements with respect to each product and swap portfolio. The

derivatives clearing organization shall have reasonable discretion in

determining the percentage by which customer initial margins must

exceed the derivatives clearing organization's initial margin

requirements with respect to particular products or swap portfolios.

The Commission may review such percentage levels and require different

percentage levels if the Commission deems the levels insufficient to

protect the financial integrity of the clearing members or the

derivatives clearing organization.

(iii) Withdrawal of customer initial margin. A derivatives clearing

organization 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 a customer's account after such withdrawal are sufficient

to meet the customer initial margin requirements with respect to all

products and swap portfolios held in such customer's account which are

cleared by the derivatives clearing organization.

(9) Time deadlines. A derivatives clearing organization shall

establish and enforce time deadlines for initial and variation margin

payments to the derivatives clearing organization.

(h) Other risk control mechanisms--(1) Risk limits. (i) A

derivatives clearing organization shall impose risk limits on each

clearing member, by customer origin and house origin, in order to

prevent a clearing member from carrying positions for which the risk

exposure exceeds a specified threshold relative to the clearing

member's and/or the derivatives clearing organization's financial

resources. The derivatives clearing organization shall have reasonable

discretion in determining:

(A) The method of computing risk exposure;

(B) The applicable threshold(s); and

(C) The applicable financial resources under this provision;

provided however, that the ratio of exposure to capital must remain the

same across all capital levels. The Commission may review such methods,

thresholds, and financial resources and require the application of

different methods, thresholds, or financial resources, as appropriate.

(ii) A derivatives clearing organization may permit a clearing

member to exceed the threshold(s) applied pursuant to paragraph

(h)(1)(i) of this section provided that the derivatives clearing

organization requires the clearing member to post additional initial

margin that the derivatives clearing organization deems sufficient to

[[Page 3722]]

appropriately eliminate excessive risk exposure at the clearing member.

The Commission may review the amount of additional initial margin and

require a different amount of additional initial margin, as

appropriate.

(2) Large trader reports. A derivatives clearing organization shall

obtain from its clearing members, copies of all reports that are

required to be filed with the Commission by such clearing members

pursuant to part 17 of this chapter. With respect to exclusively self-

cleared contracts, a derivatives clearing organization shall obtain

from the relevant reporting market, copies of all reports that are

required to be filed with the Commission on behalf of such clearing

members by the relevant reporting market, pursuant to Sec. 17.00(i) of

this chapter. A derivatives clearing organization shall review such

reports on a daily basis to ascertain the risk of the overall portfolio

of each large trader, including positions at all clearing members

carrying accounts for each such large trader, and shall take additional

actions with respect to such clearing members, when appropriate, as

specified in paragraph (h)(6) of this section, in order to address any

risks posed by any such large trader.

(3) Stress tests. A derivatives clearing organization shall conduct

stress tests, as defined in Sec. 39.2 of this part, as follows:

(i) On a daily basis, a derivatives clearing organization shall

conduct stress tests with respect to each large trader who poses

significant risk to a clearing member or the derivatives clearing

organization, including positions at all clearing members carrying

accounts for each such large trader. The derivatives clearing

organization shall have reasonable discretion in determining which

traders to test and the methodology used to conduct such stress tests.

The Commission may review the selection of accounts and the methodology

and require changes, as appropriate.

(ii) On at least a weekly basis, a derivatives clearing

organization shall conduct stress tests with respect to each clearing

member account, by customer origin and house origin, and each swap

portfolio, by beneficial owner, under extreme but plausible market

conditions. The derivatives clearing organization shall have reasonable

discretion in determining the methodology used to conduct such stress

tests. The Commission may review the methodology and require changes,

as appropriate.

(4) Portfolio compression. (i) A derivatives clearing organization

shall offer multilateral portfolio compression exercises, on a regular

basis, for its clearing members that clear swaps, to the extent that

such exercises are appropriate for those swaps that it clears.

(ii) A derivatives clearing organization shall require its clearing

members to participate in all such exercises, to the extent that any

swap in the applicable portfolio is eligible for inclusion in the

exercise, unless including the swap would be reasonably likely to

significantly increase the risk exposure of the clearing member.

(iii) A derivatives clearing organization may permit clearing

members participating in compression exercises to set risk tolerance

limits for their portfolios, provided that the clearing members do not

set such risk tolerances at an unreasonable level or use such risk

tolerances to evade the requirements of this paragraph.

(5) Clearing members' risk management policies and procedures. (i)

A derivatives clearing organization shall adopt rules that:

(A) Require its clearing members to maintain current written risk

management policies and procedures;

(B) Ensure that it has the authority to request and obtain

information and documents from its clearing members regarding their

risk management policies, procedures, and practices, including, but not

limited to, information and documents relating to the liquidity of

their financial resources and their settlement procedures; and

(C) Require its clearing members to make information and documents

regarding their risk management policies, procedures, and practices

available to the Commission upon the Commission's request.

(ii) A derivatives clearing organization shall review the risk

management policies, procedures, and practices of each of its clearing

members on a periodic basis and document such reviews.

(6) Additional authority. A derivatives clearing organization shall

take additional actions with respect to particular clearing members,

when appropriate, based on the application of objective and prudent

risk management standards including, but not limited to:

(i) Imposing enhanced capital requirements;

(ii) Imposing enhanced margin requirements;

(iii) Imposing position limits;

(iv) Prohibiting an increase in positions;

(v) Requiring a reduction of positions;

(vi) Liquidating or transferring positions; and

(vii) Suspending or revoking clearing membership.

Sec. 39.14 Settlement procedures.

(a) Definitions--(1) Settlement. For purposes of this section,

``settlement'' means:

(i) Payment and receipt of variation margin for futures, options,

and swap positions;

(ii) Payment and receipt of option premiums;

(iii) Deposit and withdrawal of initial margin for futures,

options, and swap positions;

(iv) All payments due in final settlement of futures, options, and

swap positions on the final settlement date with respect to such

positions; and

(v) All other cash flows collected from or paid to each clearing

member, including but not limited to, payments related to swaps such as

coupon amounts.

(2) Settlement bank. For purposes of this section, ``settlement

bank'' means a bank that maintains an account either for the

derivatives clearing organization or for any of its clearing members,

which is used for the purpose of transferring funds and receiving

transfers of funds in connection with settlements with the derivatives

clearing organization.

(b) Daily settlements. A derivatives clearing organization shall

effect a settlement with each clearing member at least once each

business day, and shall have the authority and operational capacity to

effect a settlement with each clearing member, on an intraday basis,

either routinely, when thresholds specified by the derivatives clearing

organization are breached, or in times of extreme market volatility.

(c) Settlement banks. A derivatives clearing organization shall

employ settlement arrangements that eliminate or strictly limit its

exposure to settlement bank risks, including the credit and liquidity

risks arising from the use of such banks to effect settlements with its

clearing members.

(1) A derivatives clearing organization shall have documented

criteria with respect to those banks that are acceptable settlement

banks for the derivatives clearing organization and its clearing

members, including criteria addressing the capitalization,

creditworthiness, access to liquidity, operational reliability, and

regulation or supervision of such banks.

(2) A derivatives clearing organization shall monitor each approved

settlement bank on an ongoing basis to ensure that such bank continues

to meet the criteria established pursuant to paragraph (c)(1) of this

section.

[[Page 3723]]

(3) A derivatives clearing organization shall monitor the full

range and concentration of its exposures to its own and its clearing

members' settlement banks and assess its own and its clearing members'

potential losses and liquidity pressures in the event that the

settlement bank with the largest share of settlement activity were to

fail. A derivatives clearing organization shall:

(i) Maintain settlement accounts at additional settlement banks;

(ii) Approve additional settlement banks for use by its clearing

members;

(iii) Impose concentration limits with respect to its own or its

clearing members' settlement banks; and/or

(iv) Take any other appropriate actions, if any such actions are

reasonably necessary in order to eliminate or strictly limit such

exposures.

(d) Settlement finality. A derivatives clearing organization shall

ensure that settlements are final when effected by ensuring that

settlement fund transfers are irrevocable and unconditional when the

derivatives clearing organization's accounts are debited or credited. A

derivatives clearing organization's legal agreements with its

settlement banks shall state clearly when settlement fund transfers

will occur and a derivatives clearing organization shall routinely

confirm that its settlement banks are effecting fund transfers as and

when required by such legal agreements.

(e) Recordkeeping. A derivatives clearing organization shall

maintain an accurate record of the flow of funds associated with each

settlement.

(f) Netting arrangements. A derivatives clearing organization shall

possess the ability to comply with each term and condition of any

permitted netting or offset arrangement with any other clearing

organization.

(g) Physical delivery. With respect to contracts, agreements, and

transactions that are settled by physical transfers of the underlying

instruments or commodities, a derivatives clearing organization shall:

(1) Establish rules that clearly state each obligation that the

derivatives clearing organization has assumed with respect to physical

deliveries, including whether it has an obligation to make or receive

delivery of a physical instrument or commodity, or whether it

indemnifies clearing members for losses incurred in the delivery

process; and

(2) Ensure that the risks of each such obligation are identified

and managed.

Sec. 39.15 Treatment of funds.

(a) Required standards and procedures. A derivatives clearing

organization shall establish standards and procedures that are designed

to protect and ensure the safety of funds and assets belonging to

clearing members and their customers.

(b) Segregation of funds and assets--(1) Segregation. A derivatives

clearing organization shall comply with the segregation requirements of

section 4d of the Act and Commission regulations thereunder, or any

other applicable Commission regulation or order requiring that customer

funds and assets be segregated, set aside, or held in a separate

account.

(2) Commingling of futures, options on futures, and swaps

positions--(i) Cleared swap account. In order for a derivatives

clearing organization and its clearing members to commingle customer

positions in futures, options on futures, and swaps, and any money,

securities, or property received to margin, guarantee or secure such

positions, in an account subject to the requirements of section 4d(f)

of the Act, the derivatives clearing organization shall file rules for

Commission approval pursuant to Sec. 40.5 of this chapter. Such rule

submission shall include, at a minimum, the following:

(A) An identification of the futures, options on futures, and swaps

that would be commingled, including contract specifications or the

criteria that would be used to define eligible futures, options on

futures, and swaps;

(B) An analysis of the risk characteristics of the eligible

products;

(C) A description of whether the swaps would be executed

bilaterally and/or executed on a designated contract market and/or a

swap execution facility;

(D) An analysis of the liquidity of the respective markets for the

futures, options on futures, and swaps that would be commingled, the

ability of clearing members and the derivatives clearing organization

to offset or mitigate the risk of such futures, options on futures, and

swaps in a timely manner, without compromising the financial integrity

of the account, and, as appropriate, proposed means for addressing

insufficient liquidity;

(E) An analysis of the availability of reliable prices for each of

the eligible products;

(F) A description of the financial, operational, and managerial

standards or requirements for clearing members that would be permitted

to commingle such futures, options on futures, and swaps;

(G) A description of the systems and procedures that would be used

by the derivatives clearing organization to oversee such clearing

members' risk management of any such commingled positions;

(H) A description of the financial resources of the derivatives

clearing organization, including the composition and availability of a

guaranty fund with respect to the futures, options on futures, and

swaps that would be commingled;

(I) A description and analysis of the margin methodology that would

be applied to the commingled futures, options on futures, and swaps,

including any margin reduction applied to correlated positions, and any

applicable margin rules with respect to both clearing members and

customers;

(J) An analysis of the ability of the derivatives clearing

organization to manage a potential default with respect to any of the

futures, options on futures, or swaps that would be commingled;

(K) A discussion of the procedures that the derivatives clearing

organization would follow if a clearing member defaulted, and the

procedures that a clearing member would follow if a customer defaulted,

with respect to any of the commingled futures, options on futures, or

swaps in the account; and

(L) A description of the arrangements for obtaining daily position

data from each beneficial owner of futures, options on futures, and

swaps in the account.

(ii) Futures account. In order for a derivatives clearing

organization and its clearing members to commingle customer positions

in futures, options on futures, and swaps, and any money, securities,

or property received to margin, guarantee or secure such positions, in

an account subject to the requirements of section 4d(a) of the Act, the

derivatives clearing organization shall file with the Commission a

petition for an order pursuant to section 4d(a) of the Act. Such

petition shall include, at a minimum, the information required under

paragraph (b)(2)(i) of this section.

(iii) Commission action. (A) The Commission may request additional

information in support of a rule submission filed under paragraph

(b)(i) of this section, and may grant approval of such rules in

accordance with Sec. 40.5 of this chapter.

(B) The Commission may request additional information in support of

a petition filed under paragraph (b)(ii) of this section, and may issue

an order under section 4d of the Act in its discretion.

(c) Holding of funds and assets. A derivatives clearing

organization shall hold funds and assets belonging to clearing members

and their customers in a manner which minimizes the risk

[[Page 3724]]

of loss or of delay in the access by the derivatives clearing

organization to such funds and assets.

(1) Types of assets. A derivatives clearing organization shall

limit the assets it accepts as initial margin to those that are have

minimal credit, market, and liquidity risks. A derivatives clearing

organization may not accept letters of credit as initial margin.

(2) Valuation. A derivatives clearing organization shall use

prudent valuation practices to value assets posted as initial margin on

a daily basis.

(3) Haircuts. A derivatives clearing organization shall apply

appropriate reductions in value to reflect market and credit risk

(haircuts), including in stressed market conditions, to the assets that

it accepts in satisfaction of initial margin obligations, and shall

evaluate the appropriateness of such haircuts on at least a quarterly

basis.

(4) Concentration limits. A derivatives clearing organization shall

apply appropriate limitations on the concentration of assets posted as

initial margin, as necessary, in order to ensure its ability to

liquidate such assets quickly, with minimal adverse price effects, and

shall evaluate the appropriateness of any such concentration limits, on

at least a monthly basis.

(5) Pledged assets. If a derivatives clearing organization permits

its clearing members to pledge assets for initial margin while

retaining such assets in accounts in the names of such clearing

members, the derivatives clearing organization shall ensure that such

assets are unencumbered and that such a pledge has been validly created

and validly perfected in the relevant jurisdiction.

(d) Permitted investments. Funds and assets belonging to clearing

members and their customers that are invested by a derivatives clearing

organization shall be held in instruments with minimal credit, market,

and liquidity risks. Any investment of customer funds or assets by a

derivatives clearing organization shall comply with Sec. 1.25 of this

part, as if all such funds and assets comprise customer funds subject

to segregation pursuant to section 4d(a) of the Act and Commission

regulations thereunder.

Sec. 39.16 Default rules and procedures.

(a) In general. A derivatives clearing organization shall adopt

rules and procedures designed to allow for the efficient, fair, and

safe management of events during which clearing members become

insolvent or default on the obligations of such clearing members to the

derivatives clearing organization.

(b) Default management plan. A derivatives clearing organization

shall maintain a current written default management plan that

delineates the roles and responsibilities of its Board of Directors,

its Risk Management Committee, any other committee that has

responsibilities for default management, and the derivatives clearing

organization's management, in addressing a default, including any

necessary coordination with, or notification of, other entities and

regulators. Such plan shall address any differences in procedures with

respect to highly liquid contracts (such as certain futures) and less

liquid contracts (such as certain swaps). A derivatives clearing

organization shall conduct and document a test of its default

management plan on at least an annual basis.

(c) Default procedures. (1) A derivatives clearing organization

shall adopt procedures that would permit the derivatives clearing

organization to take timely action to contain losses and liquidity

pressures and to continue meeting its obligations in the event of a

default on the obligations of a clearing member to the derivatives

clearing organization.

(2) A derivatives clearing organization shall adopt rules that set

forth its default procedures, including:

(i) The derivatives clearing organization's definition of a

default;

(ii) The actions that the derivatives clearing organization may

take upon a default, which shall include the prompt transfer,

liquidation, or hedging of the customer or proprietary positions of the

defaulting clearing member, as applicable, and which may include, in

the discretion of the derivatives clearing organization, the auctioning

or allocation of such positions to other clearing members;

(iii) Any obligations that the derivatives clearing organization

imposes on its clearing members to participate in auctions, or to

accept allocations, of a defaulting clearing member's positions,

provided that any allocation shall be proportional to the size of the

participating or accepting clearing member's positions at the

derivatives clearing organization;

(iv) The sequence in which the funds and assets of the defaulting

clearing member and the financial resources maintained by the

derivatives clearing organization would be applied in the event of a

default;

(v) A provision that customer margin posted by a defaulting

clearing member shall not be applied in the event of a proprietary

default;

(vi) A provision that proprietary margins posted by a defaulting

clearing member shall be applied in the event of a customer default, if

the relevant customer margin is insufficient to cover the shortfall;

and

(3) A derivatives clearing organization shall make its default

rules publicly available as provided in Sec. 39.21 of this part.

(d) Insolvency of a clearing member.

(1) A derivatives clearing organization shall adopt rules that

require a clearing member to provide prompt notice to the derivatives

clearing organization if it becomes the subject of a bankruptcy

petition, receivership proceeding, or the equivalent;

(2) Upon receipt of such notice, a derivatives clearing

organization shall review the continuing eligibility of the clearing

member for clearing membership; and

(3) Upon receipt of such notice, a derivatives clearing

organization shall take any appropriate action, in its discretion, with

respect to such clearing member or its positions, including but not

limited to liquidation or transfer of positions, and suspension or

revocation of clearing membership.

Sec. 39.17 [Reserved]

Sec. 39.18 System safeguards.

(a) Definitions. For purposes of this section and of Sec. 39.30 of

this part:

Relevant area means the metropolitan or other geographic area

within which a derivatives clearing organization has physical

infrastructure or personnel necessary for it to conduct activities

necessary to the clearance and settlement of existing and new

contracts. The term ``relevant area'' also includes communities

economically integrated with, adjacent to, or within normal commuting

distance of that metropolitan or other geographic area.

Recovery time objective means the time period within which an

entity should be able to achieve recovery and resumption of clearing

and settlement of existing and new contracts, after those capabilities

become temporarily inoperable for any reason up to or including a wide-

scale disruption.

Wide-scale disruption means an event that causes a severe

disruption or destruction of transportation, telecommunications, power,

water, or other critical infrastructure components in a relevant area,

or an event that results in an evacuation or unavailability of the

population in a relevant area.

(b) In general--(1) Program of risk analysis. Each derivatives

clearing organization shall establish and

[[Page 3725]]

maintain a program of risk analysis and oversight with respect to its

operations and automated systems to identify and minimize sources of

operational risk through:

(i) The development of appropriate controls and procedures; and

(ii) The development of automated systems that are reliable,

secure, and have adequate scalable capacity.

(2) Resources. Each derivatives clearing organization shall

establish and maintain resources that allow for the fulfillment of each

obligation and responsibility of the derivatives clearing organization

in light of the risks identified pursuant to paragraph (b)(1) of this

section.

(3) Verification of adequacy. Each derivatives clearing

organization shall periodically verify that resources described in

paragraph (b)(2) are adequate to ensure daily processing, clearing, and

settlement.

(c) Elements of program. A derivatives clearing organization's

program of risk analysis and oversight with respect to its operations

and automated systems, as described in paragraph (b) of this section,

shall address each of the following categories of risk analysis and

oversight:

(1) Information security;

(2) Business continuity and disaster recovery planning and

resources;

(3) Capacity and performance planning;

(4) Systems operations;

(5) Systems development and quality assurance; and

(6) Physical security and environmental controls.

(d) Standards for program. In addressing the categories of risk

analysis and oversight required under paragraph (c) of this section, a

derivatives clearing organization shall follow generally accepted

standards and industry best practices with respect to the development,

operation, reliability, security, and capacity of automated systems.

(e) Business continuity and disaster recovery--(1) Plan and

resources. A derivatives clearing organization shall maintain a

business continuity and disaster recovery plan, emergency procedures,

and physical, technological, and personnel resources sufficient to

enable the timely recovery and resumption of operations and the

fulfillment of each obligation and responsibility of the derivatives

clearing organization following any disruption of its operations.

(2) Responsibilities and obligations. The responsibilities and

obligations described in paragraph (e)(1) shall include, without

limitation, daily processing, clearing, and settlement of transactions

cleared.

(3) Recovery time objective. The derivatives clearing

organization's business continuity and disaster recovery plan described

in paragraph (e)(1) of this section shall have the objective of, and

the physical, technological, and personnel resources described therein

shall be sufficient to, enable the derivatives clearing organization to

resume daily processing, clearing, and settlement no later than the

next business day following the disruption.

(f) Location of resources; outsourcing. A derivatives clearing

organization may maintain the resources required under paragraph (e)(1)

of this section either:

(1) Using its own employees as personnel, and property that it

owns, licenses, or leases (own resources); or

(2) Through written contractual arrangements with another

derivatives clearing organization or other service provider

(outsourcing).

(i) Retention of responsibility. A derivatives clearing

organization that enters into such a contractual arrangement shall

retain complete liability for any failure to meet the responsibilities

specified in paragraph (e) of this section, although it is free to seek

indemnification from the service provider. The outsourcing derivatives

clearing organization must employ personnel with the expertise

necessary to enable it to supervise the service provider's delivery of

the services.

(ii) Testing. The testing referred to in paragraph (j) of this

Sec. 39.18 and Sec. 39.30(c) of this part shall include all own and

outsourced resources, and shall verify that all such resources will

work effectively together.

(g) Notice of exceptional events. A derivatives clearing

organization shall notify staff of the Division of Clearing and

Intermediary Oversight promptly of:

(1) Any hardware or software malfunction, cyber security incident,

or targeted threat that materially impairs, or creates a significant

likelihood of material impairment, of automated system operation,

reliability, security, or capacity; or

(2) Any activation of the derivatives clearing organization's

business continuity and disaster recovery plan.

(h) Notice of planned changes. A derivatives clearing organization

shall give staff of the Division of Clearing and Intermediary Oversight

timely advance notice of all:

(1) Planned changes to automated systems that are likely to have a

significant impact on the reliability, security, or adequate scalable

capacity of such systems; and

(2) Planned changes to the derivatives clearing organization's

program of risk analysis and oversight.

(i) Recordkeeping. A derivatives clearing organization shall

maintain, and provide to Commission staff promptly upon request,

pursuant to Sec. 1.31 of this chapter, current copies of its business

continuity plan and other emergency procedures, its assessments of its

operational risks, and records of testing protocols and results, and

shall provide any other documents requested by Commission staff for the

purpose of maintaining a current profile of the derivatives clearing

organization's automated systems.

(j) Testing--(1) Purpose of testing. A derivatives clearing

organization shall conduct regular, periodic, and objective testing and

review of:

(i) Its automated systems to ensure that they are reliable, secure,

and have adequate scalable capacity; and

(ii) Its business continuity and disaster recovery capabilities,

using testing protocols adequate to ensure that the derivatives

clearing organization's backup resources are sufficient to meet the

requirements of paragraph (e) of this section.

(2) Conduct of testing. Testing shall be conducted by qualified,

independent professionals. Such qualified independent professionals may

be independent contractors or employees of the derivatives clearing

organization, but shall not be persons responsible for development or

operation of the systems or capabilities being tested.

(3) Reporting and review. Reports setting forth the protocols for,

and results of, such tests shall be communicated to, and reviewed by,

senior management of the derivatives clearing organization. Protocols

of tests which result in few or no exceptions shall be subject to more

searching review.

(k) Coordination of business continuity and disaster recovery

plans. A derivatives clearing organization shall, to the extent

practicable:

(1) Coordinate its business continuity and disaster recovery plan

with those of its clearing members, in a manner adequate to enable

effective resumption of daily processing, clearing, and settlement

following a disruption;

(2) Initiate and coordinate periodic, synchronized testing of its

business continuity and disaster recovery plan and the plans of its

clearing members; and

(3) Ensure that its business continuity and disaster recovery plan

takes into account the plans of its providers of essential services,

including telecommunications, power, and water.

[[Page 3726]]

Sec. 39.19 Reporting.

(a) [Reserved]

(b) [Reserved]

(c) (1) [Reserved]

(i) [Reserved]

(ii) [Reserved]

(iii) [Reserved]

(iv) End-of-day positions for each clearing member, by customer

origin and house origin.

(2) [Reserved]

(3)(i) [Reserved]

(ii) [Reserved]

(iii) The annual verification required by Sec. 39.24(b)(4) of this

part.

(iv) Time of report. The reports required by this paragraph (c)(3)

shall be submitted concurrently to the Commission not more than 90 days

after the end of the derivatives clearing organization's fiscal year;

provided that, a derivatives clearing organization may request from the

Commission an extension of time to submit either report, provided the

derivatives clearing organization's failure to submit the report in a

timely manner could not be avoided without unreasonable effort or

expense. Extensions of the deadline will be granted at the discretion

of the Commission.

(4) (i)-(xv) [Reserved]

(xvi) Action of Board of Directors or Risk Management Committee. A

report when (A) the Board of Directors of a derivatives clearing

organization rejects a recommendation or supersedes an action of the

Risk Management Committee; or

(B) The Risk Management Committee rejects a recommendation or

supersedes an action of its subcommittee, as required by Sec. 39.25(b)

of this part.

(xvii) Election of Board of Directors. A report after each election

of its Board of Directors in accordance with Sec. 40.9(b)(1)(iii) of

this chapter.

(xviii) System safeguards. A report of (A) exceptional events as

required by Sec. 39.18(g) of this part; or

(B) Planned changes as required by Sec. 39.18(h) of this part.

Sec. 39.20 [Reserved]

Sec. 39.21 Public information.

(a) [Reserved]

(b) [Reserved]

(c)(1)-(5) [Reserved]

(6) The derivatives clearing organization's rules and procedures

for defaults in accordance with Sec. 39.16 of this part;

(7) Governance and conflicts of interest in accordance with Sec.

39.24(a)(2) of this part and Sec. 40.9(d) of this chapter; and

(8) Any other matter that is relevant to participation in the

clearing and settlement activities of the derivatives clearing

organization.

Sec. 39.22 [Reserved]

Sec. 39.23 [Reserved]

Sec. 39.24 Governance fitness standards.

(a) [Reserved]

(b)(1)-(3) [Reserved]

(4) Verification. Each derivatives clearing organization must

collect and verify information that supports compliance with the

standards in paragraphs (b)(2) and (3) of this section, and provide

that information to the Commission on an annual basis in accordance

with the requirements of Sec. 39.19(c)(3)(iv) of this part. Such

information may take the form of a certification based on verifiable

information, an affidavit from the general counsel of the derivatives

clearing organization, registration information, or other

substantiating information.

Sec. 39.25 Conflicts of interest.

(a) [Reserved]

(b) Reporting to the Commission. In the event that:

(1) The Board of Directors of a derivatives clearing organization

rejects a recommendation or supersedes an action of the Risk Management

Committee, or

(2) The Risk Management Committee rejects a recommendation or

supersedes an action of its subcommittee (as described in Sec.

39.13(d)(5) of this part), the derivatives clearing organization shall

submit a written report to the Commission within 30 days of such a

rejection or supersession detailing:

(i) The recommendation or action of the Risk Management Committee

(or subcommittee thereof);

(ii) The rationale for such recommendation or action;

(iii) The rationale of the Board of Directors (or the Risk

Management Committee, if applicable) for rejecting such recommendation

or superseding such action; and

(iv) The course of action that the Board of Directors (or the Risk

Management Committee, if applicable) decided to take contrary to such

recommendation or action.

9. Add subpart C to read as follows:

Subpart C--Provisions applicable to systemically important derivatives

clearing organizations.

Sec.

39.28 Scope.

39.29 [Reserved]

39.30 System safeguards.

30.31 Special enforcement authority.

Subpart C--Provisions applicable to systemically important

derivatives clearing organizations.

Sec. 39.28 Scope.

(a) The provisions of this subpart C apply to any derivatives

clearing organization, as defined in section 1a(15) of the Act and

Sec. 1.3(d) of this chapter,

(1) Which is registered or deemed to be registered with the

Commission as a derivatives clearing organization, is required to

register as such with the Commission pursuant to section 5b(a) of the

Act, or which voluntarily registers as such with the Commission

pursuant to section 5b(b) or otherwise; and

(2) Which is a systemically important derivatives clearing

organization as defined in Sec. 39.2 of this part.

(b) A systemically important derivatives clearing organization is

subject to the provisions of subparts A and B of this part 39 except to

the extent different requirements are imposed by provisions of this

subpart C.

(c) A systemically important derivatives clearing organization

shall provide notice to the Commission in advance of any proposed

change to its rules, procedures, or operations that could materially

affect the nature or level of risks presented by the systemically

important derivatives clearing organization, in accordance with the

requirements of Sec. 40.10 of this chapter.

Sec. 39.29 [Reserved]

Sec. 39.30 System safeguards.

(a) Notwithstanding Sec. 39.18(e)(3) of this part, the business

continuity and disaster recovery plan described in Sec. 39.18(e)(1)

for each systemically important derivatives clearing organization shall

have the objective of enabling, and the physical, technological, and

personnel resources described in Sec. 39.18(e)(1) shall be sufficient

to enable, the derivatives clearing organization to recover its

operations and resume daily processing, clearing, and settlement no

later than two hours following the disruption, for any disruption

including a wide-scale disruption.

(b) To ensure its ability to achieve the recovery time objective

specified in paragraph (a) of this section in the event of a wide-scale

disruption, each systemically important derivatives clearing

organization must maintain a degree of geographic dispersal of

physical, technological and personnel resources consistent with the

following:

(1) Physical and technological resources, sufficient to enable the

entity

[[Page 3727]]

to meet the recovery time objective after interruption of normal

clearing by a wide-scale disruption, must be located outside the

relevant area of the infrastructure the entity normally relies upon to

conduct activities necessary to the clearance and settlement of

existing and new contracts, and must not rely on the same critical

transportation, telecommunications, power, water, or other critical

infrastructure components the entity normally relies upon for such

activities;

(2) Personnel, sufficient to enable the entity to meet the recovery

time objective after interruption of normal clearing by a wide-scale

disruption affecting the relevant area in which the personnel the

entity normally relies upon to engage in such activities are located,

must live and work outside that relevant area;

(3) The provisions of Sec. 39.18(f) of this part shall apply to

these resource requirements.

(c) Each systemically important derivatives clearing organization

must conduct regular, periodic tests of its business continuity and

disaster recovery plans and resources and its capacity to achieve the

required recovery time objective in the event of a wide-scale

disruption. The provisions of Sec. 39.18(j) of this part apply to such

testing.

(d) The requirements of this section shall apply to a derivatives

clearing organization not earlier than one year after such derivatives

clearing organization is designated as systemically important.

Sec. 39.31 Special enforcement authority.

For purposes of enforcing the provisions of Title VIII of the Dodd-

Frank Act, a systemically important derivatives clearing organization

shall be subject to, and the Commission has authority under the

provisions of subsections (b) through (n) of section 8 of, the Federal

Deposit Insurance Act (12 U.S.C. 1818) in the same manner and to the

same extent as if the systemically important derivatives clearing

organization were an insured depository institution and the Commission

were the appropriate Federal banking agency for such insured depository

institution.

10. Revise appendix A to read as follows:

Appendix A to Part 39--Form DCO Derivatives Clearing Organization

Application for Registration

BILLING CODE 6351-01-P

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BILLING CODE 6351-01-C

Description of Exhibits

Exhibit A--General Information/Compliance

Attach as Exhibit A-1, a regulatory compliance chart

setting forth each Core Principle and providing citations to the

Applicant's relevant rules, policies, and procedures that address

each Core Principle, and a brief summary of the manner in which

Applicant will comply with each Core Principle.

Attach as Exhibit A-2, a current copy of Applicant's

rulebook. The rulebook must consist of all the rules necessary to

carry out Applicant's role as a derivatives clearing organization.

Applicant must certify that its rules constitute a binding agreement

between Applicant and its clearing members and, in addition to the

separate clearing member agreements, establish rights and

obligations between Applicant and its clearing members.

Attach as Exhibit A-3, a narrative summary of

Applicant's proposed clearing activities including (i) the

anticipated start date of clearing products (or, if Applicant is

already clearing products, the anticipated start date of activities

for which Applicant is seeking an amendment to its registration) and

(ii) a description of the scope of Applicant's proposed clearing

activities (e.g., clearing for a designated contract market;

clearing for a swap execution facility; clearing over-the-counter

(``OTC'') products).

Attach as Exhibit A-4, a detailed business plan setting

forth, at a minimum, the nature of and rationale for Applicant's

activities as a derivatives clearing organization, the context in

which it is beginning or expanding its activities, and the nature,

terms, and conditions of the products it will clear.

Attach as Exhibit A-5, a list of the names of any

person (i) who owns 5% or more of Applicant's stock or other

ownership or equity interests; or (ii) who, either directly or

indirectly, through agreement or otherwise, may control or direct

the management or policies of Applicant. Provide as part of Exhibit

A-5 the full name and address of each such person, indicate the

person's ownership percentage, and attach a copy of the agreement

or, if there is no agreement, an explanation of the basis upon which

such person exercises or may exercise such control or direction.

Attach as Exhibit A-6, a list of Applicant's current

officers, directors, governors, general partners, LLC managers, and

members of all standing committees (including any committee

referenced in Section (a)(2) of Exhibit P herein), as applicable, or

persons performing functions similar to any of the foregoing,

indicating for each:

a. Name and Title (with respect to a director, such title must

include participation on any committee of Applicant);

b. Phone number (both work and mobile) and e-mail contact

information;

c. Dates of commencement and, if appropriate, termination of

present term of office or position;

d. Length of time each such person has held the same office or

position;

e. Brief description of the business experience of each person

over the last ten years;

f. Any other current business affiliations in the financial

services industry;

g. If such person is not an employee of Applicant, list any

compensation paid to the person as a result of his or her position

at Applicant. For a director, describe any performance-based

compensation;

h. A certification for each such person that the individual

would not be disqualified under Section 8a(2) of the Act or Sec.

1.63; and

i. With respect to a director, whether such director is a public

director or a clearing member customer, and the basis for such a

determination as to the director's status.

If another entity ``operates'' Applicant, attach for such entity

all of the items indicated in Exhibit A-6. For this purpose, the

term ``operate'' shall be as defined in Sec. 40.9(b)(2)

Attach as Exhibit A-7, a diagram of the entire

corporate organizational structure of Applicant including the legal

name of all entities within the organizational structure and the

applicable percentage ownership among affiliated entities.

Additionally, provide (i) a list of all jurisdictions in which

Applicant or its affiliated entities are doing business; (iii) the

registration status of Applicant and its affiliated entities,

including pending applications or exemption requests and whether any

applications or exemptions have been denied (e.g., country,

regulator, registration category, date of registration or request

for exemption, date of denial, if applicable); and (ii) the address

for

[[Page 3736]]

legal service of process for Applicant (which cannot be a post

office box) for each applicable jurisdiction.

Attach as Exhibit A-8, a copy of the constituent

documents, articles of incorporation or association with all

amendments thereto, partnership or limited liability agreements, and

existing bylaws, operating agreement, and rules or instruments

corresponding thereto, of Applicant. Provide a certificate of good

standing or its equivalent for Applicant for each jurisdiction in

which Applicant is doing business, including any foreign

jurisdiction, dated within one month of the date of the Form DCO.

Attach as Exhibit A-9, a brief description of any

material pending legal proceeding(s) or governmental

investigation(s) to which Applicant or any of its affiliates is a

party or is subject, or to which any of its or their property is at

issue. Include the name of the court or agency where the

proceeding(s) is pending, the date(s) instituted, the principal

parties involved, a description of the factual allegations in the

complaint(s), the laws that were allegedly violated, and the relief

sought. Include similar information as to any such proceeding(s) or

any investigation known to be contemplated by any governmental

agency.

If Applicant intends to use the services of an outside

service provider (including services of its clearing members or

market participants), to enable Applicant to comply with any of the

Core Principles, Applicant must submit as Exhibit A-10 all

agreements entered into or to be entered into between Applicant and

the outside service provider, and identify (1) the services that

will be provided; (2) the staff who will provide the services; and

(3) the Core Principles addressed by such arrangement. If a

submitted agreement is not final and executed, the Applicant must

submit evidence that constitutes reasonable assurance that such

services will be provided as soon as operations require.

Attach as Exhibit A-11, documentation that demonstrates

compliance with the Chief Compliance Officer (``CCO'') requirements

set forth in Sec. 39.10(c), including but not limited to:

a. Evidence of the designation of an individual to serve as

Applicant's CCO with full responsibility and authority to develop

and enforce appropriate compliance policies and procedures;

b. A description of the background and skills of the person

designated as the CCO and a certification that the individual would

not be disqualified under Section 8a(2) of the Act or Sec. 1.63;

c. To whom the CCO reports (i.e., the senior officer or the

Board of Directors);

d. Any plan of communication or regular or special meetings

between the CCO and the Board of Directors or senior officer as

appropriate;

e. A job description setting forth the CCO's duties;

f. Procedures for the remediation of noncompliance issues; and

g. A copy of Applicant's Compliance Manual (including a code of

ethics and conflict of interest policy).

Exhibit B--Financial Resources

Attach as Exhibit B, documents that demonstrate

compliance with the financial resources requirements set forth in

Sec. 39.11, including but not limited to:

a. General--Provide as Exhibit B-1:

(1) The most recent set of audited financial statements of

Applicant or of its parent company, including the balance sheet,

income statement, statement of cash flows, notes to the financial

statements, and accountant's opinion;

(2) If the audited financial statements are not dated within 1

month of the date of filing of the Form DCO, Applicant must provide

a set of unaudited financial statements current within 1 month of

the date of filing of the Form DCO;

(3) If Applicant does not have audited financial statements,

Applicant must provide a balance sheet as of a date within 1 month

of the date of filing of the Form DCO and an income statement and

statement of cash flows reflecting the period since Applicant's

formation and a date that is within 1 month of the date of filing of

the Form DCO. These statements must be accompanied by an independent

certified public accountant's review report; and

(4) Evidence of ability to satisfy the requirements of Exhibits

B-2 and B-3 below which may include (i) pro forma financial

statements setting forth all projections and assumptions used

therein, and (ii) a narrative description of how Applicant will fund

its financial resources obligations on the first day of its

operation as a derivatives clearing organization.

b. Default Resources--Provide as Exhibit B-2:

(1) A calculation of the financial resources needed to enable

Applicant to meet its requirements under Sec. 39.11(a)(1).

Applicant must provide hypothetical default scenarios designed to

reflect a variety of market conditions, and the assumptions and

variables underlying the scenarios must be explained. All results of

the analysis must be included. This calculation requires a start-up

enterprise to estimate its largest anticipated financial exposure. A

start-up must be able to explain the basis for its estimate;

(2) Proof of unencumbered assets sufficient to satisfy Sec.

39.11(a)(1). This may be demonstrated by a copy of a bank balance

statement(s) in the name of Applicant and may be combined with the

types of financial resources set forth in Sec. 39.11(b)(1). If

relying on Sec. 39.11(b)(1)(vi), such other resources must be

thoroughly explained. If relying on Sec. 39.11(b)(1)(ii) and/or

(vi), Applicant cannot also count these assets when demonstrating

its compliance with its operating resources requirement under Sec.

39.11(a)(2) and Applicant must detail the amounts or percentages of

such assets that apply to each financial resource requirement;

(3) A demonstration that Applicant can perform the monthly

calculations required by Sec. 39.11(c)(1);

(4) A demonstration that Applicant's financial resources are

sufficiently liquid as required by Sec. 39.11(e)(1);

(5) A demonstration of how Applicant will be able to maintain,

at all times, the level of resources required by Sec. 39.11(a)(1);

and

(6) A demonstration of how default resources financial

information will be updated and reported to clearing members and the

public under Sec. 39.21, and to the Commission as required by Sec.

39.11(f)(1) and Sec. 39.19.

c. Operating Resources--Provide as Exhibit B-3:

(1) A calculation of the financial resources needed to enable

Applicant to meet its requirements under Sec. 39.11(a)(2);

(2) Proof of assets sufficient to satisfy the amount required

under Sec. 39.11(a)(2). This may be demonstrated by a copy of a

bank balance statement(s) in the name of Applicant and may be

combined with the types of financial resources set forth in Sec.

39.11(b)(2). If relying on Sec. 39.11(b)(2)(ii), such other

resources must be thoroughly explained. If relying on Sec.

39.11(b)(2)(i) or (ii), Applicant cannot also count these assets

when demonstrating its compliance with meeting its default resources

requirement under Sec. 39.11(a)(1) and Applicant must detail the

amounts or percentages of such assets that apply to each financial

resource requirement;

(3) Proof of adequate physical infrastructure to carry out

business operations, which includes an office(s) (separate from any

personal dwelling) with a U.S. street address (not merely a post

office box number) that has electricity, HVAC, and running water and

meets all local building and fire codes. This location must be the

same as the principal executive offices address identified on the

cover sheet of the Form DCO;

(4) Proof of adequate technological systems necessary to carry

out operations including properly working computers, networks,

appropriate software, telephones, fax machines, Internet access, and

photocopiers;

(5) A calculation pursuant to Sec. 39.11(c)(2), including the

total projected operating costs for Applicant's first year of

operation, calculated on a monthly basis with an explanation of the

basis for calculating each cost and a discussion of the type,

nature, and number of the various costs included;

(6) A demonstration that Applicant's financial resources are

sufficiently liquid and unencumbered, as required by Sec.

39.11(e)(2);

(7) A demonstration of how Applicant will maintain, at all

times, the level of resources required by Sec. 39.11(a)(2) with an

explanation of asset valuation methodology and calculation of

projected revenue, if applicable; and

(8) A demonstration of how operating resources financial

information will be updated and reported to clearing members and the

public under Sec. 39.21, and to the Commission as required by Sec.

39.11(f)(1) and Sec. 39.19.

d. Human Resources--Provide as Exhibit B-4:

(1) An organizational chart showing Applicant's current and

planned staff by position and title, including key personnel (as

such term is defined in Sec. 39.2) and, if applicable, managerial

staff reporting to key personnel.

(2) A discussion and description of the staffing requirements

needed to fulfill all operations and associated functions, tasks,

[[Page 3737]]

services, and areas of supervision necessary to operate Applicant on

a day-to-day basis; and

(3) The names and qualifications of individuals who are key

personnel or other managerial staff who will carry out the

operations and associated functions, tasks, services, and

supervision needed to run the Applicant on day-to-day basis. In

particular, Applicant must identify such individuals who are

responsible for risk management, treasury, clearing operations and

compliance (and specify whether each such person is an employee or

consultant/agent).

Exhibit C--Participant and Product Eligibility

Attach as Exhibit C, documents that demonstrate

compliance with the participant and product eligibility requirements

set forth in Sec. 39.12 of the Commission's regulations, including

but not limited to:

a. Participant Eligibility--Provide as Exhibit C-1, an

explanation of the requirements for becoming a clearing member and

how those requirements satisfy Sec. 39.12 and, where applicable,

support Applicant's compliance with other Core Principles. Applicant

must address how its participant eligibility requirements comply

with the core principles and regulations thereunder for financial

resources, risk management and operational capacity. The explanation

also must include:

(1) A final version of the membership agreement between

Applicant and its clearing members that sets forth the full scope of

respective rights and obligations;

(2) A discussion of how Applicant will monitor for and enforce

compliance with its eligibility criteria, especially minimum

financial requirements;

(3) An explanation of how the eligibility criteria are objective

and allow for fair and open access to Applicant. Applicant must

include an explanation of the differences between various classes of

membership or participation that might be based on different levels

of capital and/or creditworthiness. Applicant must also include

information about whether any differences exist in how Applicant

will monitor and enforce the obligations of its various clearing

members including any differences in access, privilege, margin

levels, position limits, or other controls;

(4) If Applicant allows intermediation, Applicant must describe

the requirements applicable to those who may act as intermediaries

on behalf of customers or other market participants;

(5) A description of the program for monitoring the financial

status of the clearing members on an ongoing basis;

(6) The procedures that Applicant will follow in the event of

the bankruptcy or insolvency of a clearing member, which did not

result in a default to Applicant;

(7) A description of whether and how Applicant would adjust

clearing member participation under continuing eligibility criteria

based on the financial, risk, or operational status of a clearing

member;

(8) A discussion of whether Applicant's clearing members will be

required to be registered with the Commission; and

(9) A list of current or prospective clearing members. If a

current or prospective clearing member is a Commission registrant,

Applicant must identify the member's designated self-regulatory

organization.

b. Product Eligibility--Provide as Exhibit C-2, an explanation

of the criteria for instruments acceptable for clearing including:

(1) The regulatory status of each market on which a contract to

be cleared by Applicant is traded (e.g., DCM, SEF, not a registered

market), and whether the market for which Applicant clears intends

to join the Joint Audit Committee. For OTC agreements, contracts, or

transactions not traded on a registered market, Applicant must

describe the nature of the OTC market and its interest in having the

particular OTC agreement, contract, or transaction cleared;

(2) The criteria, and the factors considered in establishing the

criteria, for determining the types of products that will be

cleared;

(3) An explanation of how the criteria for deciding what

products to clear take into account the different risks inherent in

clearing different agreements, contracts, or transactions and how

those criteria affect maintenance of assets to support the guarantee

function in varying risk environments;

(4) A precise list of all the agreements, contracts, or

transactions to be covered by Applicant's registration order,

including the terms and conditions of all agreements, contracts, or

transactions;

(5) A forecast of expected volume and open interest at the

outset of clearing operations, after six months, and after one year

of operation; and

(6) The mechanics of clearing the contract, such as reliance on

exchange for physical, exchange for swap, or other substitution

activity; whether the contracts are matched prior to submission for

clearing or after submission; and other aspects of clearing

mechanics that are relevant to understanding the products that would

be eligible for clearing.

Exhibit D--Risk Management

Attach as Exhibit D, documents that demonstrate

compliance with the risk management requirements set forth in Sec.

39.13 of the Commission's regulations, including but not limited to:

a. Risk Management Framework--Provide as Exhibit D-1, a copy of

Applicant's written policies, procedures, and controls, as approved

by Applicant's Board of Directors, that establish Applicant's risk

management framework as required by Sec. 39.13(b). Applicant must

also provide a description of the composition and responsibilities

of Applicant's Risk Management Committee.

b. Measuring Risk--Provide as Exhibit D-2, a narrative

explanation of how Applicant has projected and will continue to

measure its counterparty risk exposure, including:

(1) A description of the risk-based margin calculation

methodology;

(2) The assumptions upon which the methodology was designed,

including the risk analysis tools and procedures employed in the

design process;

(3) An explanation as to why a particular methodology was chosen

over other methodologies that might have been suitable, including a

comparison of margin levels calculated using other margin

methodologies;

(4) A demonstration of the margin methodology as applied to real

or hypothetical clearing scenarios;

(5) A description of the data sources for inputs used in the

methodology, e.g. historical price data reflecting market volatility

over various periods of time;

(6) A description of the sources of price data for the

measurement of current exposures and the valuation models for

addressing circumstances where pricing data is not readily available

or reliable;

(7) The frequency and circumstances under which the margin

methodology will be reviewed and the criteria for deciding how often

to review and whether to modify a margin methodology;

(8) An independent validation of Applicant's systems for

generating initial margin requirements, including its theoretical

models;

(9) The frequency of measuring counterparty risk exposures (mark

to market), whether counterparty risk exposures are routinely

measured on an intraday basis, whether Applicant has the operational

capacity to measure counterparty risk exposures on an intraday

basis, and the circumstances under which Applicant would conduct a

non-routine intraday measurement of counterparty risk exposures;

(10) Preliminary forecasts regarding future counterparty risk

exposure and assumptions upon which such forecasts of exposure are

based;

(11) A description of any systems or software that Applicant

will require clearing members to use in order to margin their

positions in their internal bookkeeping systems, and whether and

under what terms and conditions Applicant will provide such systems

or software to clearing members; and

(12) A description of the extent to which counterparty risk can

be offset through the clearing process (i.e., the limitations, if

any, on Applicant's duty to fulfill its obligations as the buyer to

every seller and the seller to every buyer).

c. Limiting Risk--Provide as Exhibit D-3, a narrative discussion

addressing the specifics of Applicant's clearing activities,

including:

(1) How Applicant will collect financial information about its

clearing members and other traders or market participants, monitor

price movements, and mark to market, on a daily basis, the products

and/or portfolios it clears;

(2) How Applicant will monitor accounts carried by clearing

members, the accumulation of positions by clearing members and other

market participants, and compliance with position limits; and how it

will use large trader information;

(3) How Applicant will determine variation margin levels and

outstanding initial margin due;

(4) How Applicant will identify unusually large pays on a

proactive basis before they occur;

(5) Whether and how Applicant will compare price moves and

position information to historical patterns and to the

[[Page 3738]]

financial information collected from its clearing members; how it

will identify unusually large pays on a daily basis;

(6) How Applicant will use various risk tools and procedures

such as: (i) value-at-risk calculations; (ii) stress testing; (iii)

back testing; and/or (iv) other risk management tools and

procedures;

(7) How Applicant will communicate with clearing members,

settlement banks, other derivatives clearing organizations,

designated contract markets, swap execution facilities, major swap

participants, swap data repositories, and other entities in

emergency situations or circumstance that might require immediate

action by the Applicant;

(8) How Applicant will monitor risk outside business hours;

(9) How Applicant will review its clearing members' risk

management practices;

(10) Whether Applicant will impose credit limits and/or employ

other risk filters (such as automatic system denial of entry of

trades under certain conditions);

(11) Plans for handling ``extreme market volatility'' and how

Applicant defines that term;

(12) An explanation of how Applicant will be able to offset

positions in order to manage risk including: (i) ensuring both

Applicant and clearing members have the operational capacity to do

so; and (ii) liquidity of the relevant market, especially with

regard to OTC products and OTC markets;

(13) Plans for managing accounts that are ``too big'' to

liquidate and for conducting ``what if'' analyses on these accounts;

(14) If options are involved, how Applicant will manage the

different and more complex risk presented by these products;

(15) If Applicant intends to clear swaps, whether and how often

Applicant will offer multilateral portfolio compression exercises

for its clearing members; and

(16) If Applicant intends to clear credit default swaps, how

Applicant will manage the unique risks associated with clearing

these products, such as jump-to-default risk.

d. Existence of collateral (funds and assets) to apply to losses

resulting from realized risk--Provide as Exhibit D-4:

(1) An explanation of the factors, process, and methodology used

for calculating and setting required collateral levels, the required

inputs, the appropriateness of those inputs, and an illustrative

example;

(2) An analysis supporting the sufficiency of Applicant's

collateral levels for capturing all or most price moves that may

take place in one settlement cycle;

(3) A description of how Applicant will value open positions and

collateral assets;

(4) A description and explanation of the forms of assets allowed

as collateral, why they are acceptable, and whether there are any

haircuts or concentration limits on certain kinds of assets,

including how often any such haircuts and concentration limits are

reviewed;

(5) An explanation of how and when Applicant will collect

collateral, whether and under what circumstances it will collect

collateral on an intraday basis, and what will happen if collateral

is not received in a timely manner. Include a proposed collateral

collection schedule based on changes in market positions and

collateral values; and

(6) If options are involved, a full explanation of how it will

manage the associated risk through the use of collateral including,

if applicable, a discussion of its option pricing model, how it

establishes its implied volatility scan range, and other matters

related to the complex matter of managing the risk associated with

the clearing of option contracts.

Exhibit E--Settlement Procedures

Attach as Exhibit E, documents that demonstrate

compliance with the settlement procedures requirements set forth in

Sec. 39.14 of the Commission's regulations, including but not

limited to:

a. Settlement--Provide as Exhibit E-1, a full description of the

daily process of settling financial obligations on all open

positions being cleared. This must include:

(1) Procedures for completing settlements on a timely basis

during normal market conditions (and no less frequently than once

each business day);

(2) Procedures for completing settlements on a timely basis in

varying market circumstances including in the event of a default by

the clearing member creating the largest financial exposure for

Applicant in extreme but plausible market conditions;

(3) A description of how contracts will be marked to market on

at least a daily basis;

(4) Identification of the settlement banks used by Applicant

(including identification of the lead settlement bank, if

applicable) and a copy of Applicant's settlement bank agreement(s).

Such settlement bank agreements must (i) outline daily cash

settlement procedures, (ii) state clearly when settlement fund

transfers will occur, (iii) provide procedures for settlements on

bank holidays when the markets are open, and (iv) ensure that

settlements are final when effected;

(5) Identification of settlement banks that Applicant will allow

its clearing members to use for margin calls and variation

settlements;

(6) A description of the criteria and review process used by

Applicant when selecting settlement banks; procedures for monitoring

the continued appropriateness of all settlement banks including a

description of how Applicant monitors its concentration risk or

exposure to each settlement bank;

(7) The specific means by which settlement instructions are

communicated from Applicant to the settlement bank(s);

(8) A timetable showing the flow of funds associated with the

settlement of products for a 24-hour period or such other settlement

timeframe specified by a particular product; this may be presented

in the form of a chart, as in the following example:

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[GRAPHIC] [TIFF OMITTED] TP20JA11.026

(9) A description of what happens in the event that there are

insufficient funds in a clearing member's settlement account;

(10) An explanation of how and when Applicant will collect

variation margin, whether and under what circumstances it will

collect variation margin on an intraday basis, what will happen if

variation margin is not received in a timely manner, and a proposed

variation margin collection schedule based on changes in market

prices;

(11) All the information above, to the extent relevant, for any

products cleared that may be denominated in a foreign currency; and

(12) With respect to physical settlements, identify Applicant's

rules that clearly state each obligation of Applicant with respect

to physical deliveries, and explain how Applicant intends to

identify and manage risks arising from physical settlement.

b. Recordkeeping--Provide as Exhibit E-2, a full description of

the following:

(1) The nature and quality of the information collected

concerning the flow of funds involved in clearing and settlement;

and

(2) How such information will be recorded, maintained, and

accessed.

c. Interfaces with other clearing organizations--Provide as

Exhibit E-3, a description of Applicant's relationships with other

derivatives clearing organizations, clearing agencies, financial

market utilities or foreign entities that perform similar functions

including how compliance with the terms and conditions of agreements

or arrangements with such other entities will be satisfied, e.g.,

any netting or offset arrangements, cross-margining, portfolio

margining, linkage, common banking, common clearing programs or

limited guaranty agreements or arrangements.

Exhibit F--Treatment of Funds

Attach as Exhibit F, documents that demonstrate

compliance with the treatment of funds requirements set forth in

Sec. 39.15 of the Commission's regulations, including but not

limited to:

a. Safe custody--Provide as Exhibit F-1, documents that

demonstrate:

(1) How Applicant will ensure the safekeeping of funds and

collateral in depositories and how Applicant will minimize the risk

of loss or of delay in accessing such funds and collateral;

(2) The depositories that will hold the funds and collateral and

any written agreements between or among such depositories, Applicant

or its clearing members regarding the legal status of the funds and

collateral and the specific conditions or prerequisites for movement

of the funds and collateral; and

(3) How Applicant will limit the concentration of risk in

depositories where funds and collateral are deposited.

b. Segregation of customer and proprietary funds--Provide as

Exhibit F-2, documents that demonstrate:

(1) The appropriate segregation of customer funds and associated

acknowledgement documentation; and

(2) Requirements or restrictions regarding commingling customer

funds with proprietary funds, obligating customer funds for any

purpose other than to purchase, clear, and settle the products

Applicant is clearing, procedures regarding customer funds which are

subject to cross-margin or similar agreements, and any other aspects

of customer fund segregation.

c. Investment standards--Provide as Exhibit F-3, documents that

demonstrate:

(1) How customer funds would be invested in instruments with

minimal credit, market, and liquidity risks, and in compliance with

the requirements of Sec. 1.25; and

(2) How Applicant will obtain and keep associated records and

data regarding the details of such investments.

[[Page 3740]]

Exhibit G--Default Rules and Procedures

Attach as Exhibit G, documents that demonstrate

compliance with the default rules and procedures requirements set

forth in Sec. 39.16 of the Commission's regulations, including but

not limited to:

a. Default Management Plan--Applicant must provide a copy of its

written default management plan which must contain all of the

information required by Sec. 39.16(b), along with Applicant's most

recently documented results of a test of its default management

plan.

b. Definition of default--Applicant must describe or otherwise

document:

(1) The events (activities, lapses, or situations) that will

constitute a clearing member default;

(2) What action Applicant can take upon a default and how

Applicant will otherwise enforce the rules applicable in the event

of default, including the steps and the sequence of the steps that

will be followed. Identify whether a Default Management Committee

exists and, if so, its role in the default process; and

(3) An example of a hypothetical default scenario and the

results of the default management process used in the scenario.

c. Remedial action--Applicant must describe or otherwise

document:

(1) The authority and methods by which Applicant may take

appropriate action in the event of the default of a clearing member

which may include, among other things, liquidating positions,

hedging, auctioning, allocating (including any obligations of

clearing members to participate in auctions or to accept

allocations), and transferring of customer accounts to another

clearing member (including an explanation of the movement of

positions and collateral on deposit); and

(2) Actions taken by a clearing member or other events that

would put a clearing member on Applicant's ``watch list'' or similar

device.

d. Process to address shortfalls--Applicant must describe or

otherwise document:

(1) Procedures for the prompt application of Applicant and/or

clearing member financial resources to address monetary shortfalls

resulting from a default;

(2) How Applicant will make publicly available its default rules

including a description of the priority of application of financial

resources in the event of default (i.e., the ``waterfall''); and

(3) How Applicant will take timely action to contain losses and

liquidity pressures and to continue to meet each obligation of

Applicant.

e. Use of cross-margin programs--Describe or otherwise document,

as applicable, how cross-margining programs will provide for fair

and efficient means of covering losses in the event of a default of

any clearing member participating in the program.

f. Customer priority rule--Describe or otherwise document rules

and procedures regarding priority of customer accounts over

proprietary accounts of defaulting clearing members and, where

applicable, specifically in the context of specialized margin

reduction programs such as cross-margining or common banking

arrangements with other derivatives clearing organizations, clearing

agencies, financial market utilities or foreign entities that

perform similar functions.

Exhibit H--Rule Enforcement

Attach as Exhibit H, documents that demonstrate

compliance with the rule enforcement requirements set forth in Sec.

39.17 of the Commission's regulations, including but not limited to:

a. Surveillance--Describe or otherwise document arrangements and

resources for the effective monitoring and enforcement of compliance

with Applicant's rules and the resolution of disputes.

b. Enforcement--Applicant must describe or otherwise document:

(1) Arrangements and resources for the effective enforcement of

rules and authority and ability to discipline and limit or suspend a

member's activities pursuant to clear and fair standards;

(2) Arrangements for enforcing compliance with its rules and

addressing instances of non-compliance, including: Disciplinary

tools such as limiting, suspending, or terminating a clearing

member's access or member privileges;

(3) How Applicant will address situations related to, but which

may not constitute an event of default, such as a clearing member's

failure to comply with certain rules or to maintain eligibility

standards, or actions taken by other regulatory bodies;

(4) The standards and any procedural protections Applicant will

follow in imposing any such enforcement measure; and

(5) Processes for reporting to the Commission Applicant's rule

enforcement activities and possible sanctions that could be imposed

against clearing members.

c. Dispute resolution--Describe or otherwise document

arrangements and resources for resolution of disputes between

customers and clearing members, and between clearing members.

Exhibit I--System Safeguards

Attach as Exhibit I, documents that demonstrate

compliance with the system safeguards requirements set forth in

Sec. 39.18 of the Commission's regulations, including but not

limited to:

a. A description of Applicant's program of risk analysis and

oversight with respect to its operations and automated systems. This

program must be designed to ensure daily processing, clearing, and

settlement of transactions and address each of the following

categories of risk:

(1) Information security;

(2) Business continuity-disaster recovery planning and

resources;

(3) Capacity and performance planning;

(4) Systems operations;

(5) Systems development and quality assurance; and

(6) Physical security and environmental controls.

b. An explanation of how Applicant will establish and maintain

resources that allow for the fulfillment of its program of risk

analysis and oversight with respect to its operations and automated

systems, and a description of such resources, including:

(1) A description of how Applicant will periodically verify that

its resources are adequate to ensure daily processing, clearing, and

settlement;

(2) A demonstration that Applicant's automated systems are

reliable, secure, and have (and will continue to have) adequate

scalable capacity;

(3) A description of the physical, technological and personnel

resources and procedures used by Applicant as part of its business

continuity and disaster recovery plan, and support for the

conclusion that these resources are sufficient to enable the

Applicant to resume daily processing, clearing and settlement no

later than the next business day following a disruption; and

(4) A statement identifying which such resources are Applicant's

own resources and which are provided by a service provider

(outsourced). For resources that are outsourced, provide (i) all

contracts governing the outsourcing arrangements, including all

schedules and other supplemental materials, and (ii) a demonstration

that Applicant employs personnel with the expertise necessary to

enable them to supervise the service provider's delivery of the

services.

c. An explanation of how Applicant will ensure the proper

functioning of its systems, including its program for the periodic

objective testing and review of its systems and back-up facilities

(including all of its own and outsourced resources), and

verification that all such resources will work effectively together;

d. Identification of the persons conducting the testing,

including information as to their qualifications and independence;

e. A description of Applicant's emergency procedures, including

a copy of its written plan for business continuity and disaster

recovery and a description of how Applicant will coordinate its

business continuity and disaster recovery plan (including testing)

with those of its clearing members and providers of essential

services such as telecommunications, power and water; and

f. A description of how Applicant will report exceptional events

and planned changes to the Commission as required by Sec. Sec.

39.18(g) and 39.18(h).

Exhibit J--Reporting

Attach as Exhibit J, documents that demonstrate

compliance with the reporting requirements set forth in Sec. 39.19

of the Commission's regulations including but not limited to:

a. How Applicant will make available to Commission staff all the

information Commission staff need in order to carry out effective

oversight. This must include a discussion of what will be made

available on a routine basis, how often it will be made available,

and the method of its transmission. The same items must be addressed

for information it will make available on a non-routine basis and

what events would precipitate the generation of such data or

information. Applicant must also address the manner in which any

information will be made available to clearing members, customers,

market participants and/or the general public. If not part of an

initial application, Applicant must provide a representation that it

will provide the

[[Page 3741]]

following when initially generated or when content changes occur:

(1) A list of current members/market participants;

(2) A list of all products currently eligible for clearing;

(3) The initial margin collection schedule;

(4) Information on any disciplinary actions (such as

suspensions, etc.);

(5) Information concerning any physical or other emergencies;

(6) All information concerning any default by a member and the

impact of the default on Applicant's financial resources;

(7) A copy of any examination/evaluation/compliance report of

any regulatory body other than the Commission that oversees

Applicant;

(8) A copy of any internal examination/evaluation/compliance

reports such as, but not limited to, those related to stress testing

and systems testing;

(9) Key personnel that have particular knowledge of the

market(s) for which Applicant clears and any changes in those

personnel, especially those to be contacted in case of market

volatility or to respond to inquiries and emergencies;

(10) Copies of audited financial statements of Applicant; and

(11) Information regarding counterparties and their positions,

stress test results, internal governance, legal proceedings, and

other clearing activities.

b. Forms or templates to be used to satisfy the daily,

quarterly, annual, and event-specific reporting requirements

specified in Sec. 39.19(c) of the Commission's regulations.

Exhibit K--Recordkeeping

Attach as Exhibit K, documents that demonstrate

compliance with the recordkeeping requirements set forth in Sec.

39.20 of the Commission's regulations including but not limited to:

a. Applicant's recordkeeping and record retention policies and

procedures;

b. The different activities related to the entity as a

derivatives clearing organization for which it must maintain

records;

c. The manner in which records relating to swaps and swap data

are gathered and maintained; and

d. How Applicant will satisfy the performance standards of Sec.

1.31 as applicable to derivatives clearing organizations, including:

(1) What ``full'' or ``complete'' will encompass with respect to

each type of book or record that will be maintained;

(2) The form and manner in which books or records will be

compiled and maintained with respect to each type of activity for

which such books or records will be kept;

(3) Confirmation that books and records will be open to

inspection by any representative of the Commission or of the U.S.

Department of Justice;

(4) How long books and records will be readily available and how

they will be made readily available during the first two years; and

(5) How long books and records will be maintained (and

confirmation that, in any event, they will be maintained as required

in Sec. 1.31).

Exhibit L--Public Information

Attach as Exhibit L, documents that demonstrate

compliance with the public information requirements set forth in

Sec. 39.21 of the Commission's regulations including but not

limited to:

a. Applicant's procedures for making its rulebook, a list of all

current clearing members, and the information listed in Sec.

39.21(c) readily available to the general public, in a timely

manner, by posting such information on Applicant's Web site no later

than the business day following the day to which the information

pertains;

b. Any other information routinely made available to the public

by Applicant;

c. How Applicant will make information available to clearing

members and market participants in order to allow such persons to

become familiar with Applicant's procedures before participating in

clearing operations; and

d. How clearing members will be informed of their specific

rights and obligations preceding a default and upon a default, and

of the specific rights, options and obligations of Applicant

preceding and upon a clearing member's default.

Exhibit M--Information Sharing

Attach as Exhibit M, documents that demonstrate

compliance with the information sharing requirements set forth in

Sec. 39.22 of the Commission's regulations, including but not

limited to:

a. The appropriate and applicable information sharing agreements

to which Applicant is, or intends to be, a party including any

domestic or international information-sharing agreements or

arrangements, whether formal or informal, which involve or relate to

Applicant's operations, especially as it relates to measuring and

addressing counterparty risk;

b. A description of the types of information expected to be

shared and how that information will be shared;

c. An explanation as to how information obtained pursuant to any

information-sharing agreements or arrangements would be used to

further the objectives of Applicant's risk management program and

any of its surveillance programs including financial surveillance

and continuing eligibility of its clearing members; and

d. An explanation as to how Applicant expects to obtain accurate

information pursuant to the information-sharing agreement or

arrangement and the mechanisms or procedures which would allow for

timely use and application of all information.

Exhibit N--Antitrust Considerations

Attach as Exhibit N, documents that demonstrate

compliance with the antitrust considerations requirements set forth

in Sec. 39.23 of the Commission's regulations, including but not

limited to policies or procedures to ensure compliance with the

antitrust considerations requirements.

Exhibit O--Governance Fitness Standards

Attach as Exhibit O, documents that demonstrate

compliance with the governance fitness standards requirements set

forth in Sec. 39.24 of the Commission's regulations, including but

not limited to:

a. The manner in which its governance arrangements permit

consideration of the views of Applicant's owners, whether voting or

non-voting, and its participants (clearing members and customers)

including (i) the general method by which Applicant will learn of

the views of Applicant's owners, other than through their exercise

of voting power, or the views of participants, other than through

representation on the Board of Directors or any committee of

Applicant, and (ii) the manner in which Applicant will consider such

views;

b. The fitness standards applicable to members of the Board of

Directors, members of any Disciplinary Panel, members of any

Disciplinary Committee, clearing members, any individual or entity

with direct access to settlement or clearing activities, and any

party affiliated with any of the above individuals or entities, as

well as natural persons who, directly or indirectly, own greater

than 10% of any one class of equity interest in Applicant; including

a description or other documentation explaining how Applicant will

collect and verify information that supports compliance with the

fitness standards; and

c. The manner in which Applicant will condition clearing member

access and other direct access to its settlement and clearing

activities on agreement to be subject to the jurisdiction of

Applicant.

Exhibit P--Conflicts of Interest

Attach as Exhibit P, documents that demonstrate

compliance with the conflicts of interest requirements set forth in

Sec. Sec. 39.13(d), 39.25, and 40.9 of the Commission's

regulations, including but not limited to:

a. A copy of:

(1) The charter (or mission statement) of Applicant (if not

attached as Exhibit A-8).

(2) The charter (or mission statement) of Applicant's Board of

Directors, each committee with a composition requirement (including

any Executive Committee), as well as each other committee that has

the authority to amend or constrain actions of Applicant's Board of

Directors (if not attached as Exhibit A-8).

(3) If another entity ``operates'' the Applicant, the charter

(or mission statement) of such entity's Board of Directors (if not

attached as Exhibit A-8); and a description of the manner in which

the Applicant will ensure that the entity complies with Sec.

40.9(b)(2)(ii)(B) and (C) (Officers and Directors; Books and

Records).

(4) An internal organizational chart showing the lines of

responsibility and accountability for each operational unit.

b. Describe or otherwise document:

(1) Applicant's rules and procedures for ensuring compliance

with the requirements of Sec. 39.25(b) (including ensuring parent

compliance with Sec. 39.25(b)(4)), including through remediation as

detailed in Sec. 39.25(b)(5);

(2) Applicant's nominations process for the Board of Directors

and the process for assigning members of the Board of Directors or

other persons to any committee referenced in item a.(2) above;

1. The manner in which the Board of Directors reviews its

performance and the

[[Page 3742]]

performance of its members on an annual basis; and

2. The procedures for removing a member of the Board of

Directors, including where the conduct of such member is likely to

be prejudicial to the sound and prudent management of Applicant;

(3) The composition of its Nominating Committee, including the

number or percentage of public directors, and the identity of the

Chairman of the Committee;

(4) The composition of any Executive Committee, including the

number or percentage of public directors;

(5) The composition of the Risk Management Committee, including

the number or percentage of public directors, the number or

percentage of customer representatives, and the identity of the

Chairman of the committee;

1. Whether the Risk Management Committee is an executive

committee or an advisory committee; and

2. Whether the Risk Management Committee has delegated certain

functions to the Risk Management Subcommittee, including a

description or other documentation of the functions so delegated;

(6) The form of report to be used in reporting to the Commission

those instances in which the Board rejects a recommendation or

supersedes an action of the Risk Management Committee, or the Risk

Management Committee rejects a recommendation or supersedes an

action of its subcommittee;

(7) The manner in which Applicant will ensure compliance with

Sec. 39.13(d)(6) (Discretion); and the manner in which Applicant

will ensure compliance with Sec. 40.9(c)(ii)(A) and (B)

(Prohibition on Domination of and Recusal Procedures with respect to

the Disciplinary Panel), and Sec. 40.9(c)(iii) (Appeals), including

whether the Board of Directors has delegated the functions of the

Disciplinary Panel to any other committee;

(8) The manner in which Applicant will record and summarize

``significant decisions,'' as such term is described in Sec.

40.9(d);

(9) The manner in which Applicant will ensure that all

information required under Sec. 40.9(d) is current, accurate,

clear, and readily accessible to both the Commission and the public;

(10) Any written procedures that Applicant intends to adopt to

identify, on an ongoing basis, existing and potential conflicts of

interest;

(11) Applicant's process for making fair and non-biased

decisions in the event of a conflict of interest; and

(12) Applicant's written policies or procedures on safeguarding

non-public information, and the manner in which such policies or

procedures fulfill the minimum standards set forth in Sec.

40.9(f)(2).

Exhibit Q--Composition of Governing Boards

Attach as Exhibit Q, documents that demonstrate

compliance with the composition of governing boards requirements set

forth in Sec. 39.26, including but not limited to documentation

describing the composition of Applicant's Board of Directors,

including the number or percentage of public directors and customer

representatives.

Exhibit R--Legal Risk Considerations

Attach as Exhibit R, documents that demonstrate

compliance with the legal risk considerations requirements set forth

in Sec. 39.27 of the Commission's regulations, including but not

limited to:

a. A discussion of how Applicant operates pursuant to a well-

founded, transparent, and enforceable legal framework that addresses

each aspect of the activities of Applicant. The framework must

provide for Applicant to act as a counterparty, including, as

applicable:

(1) Novation;

(2) Netting arrangements;

(3) Applicant's interest in collateral (including margin);

(4) The steps that Applicant can take to address a default of a

clearing member, including but not limited to, the unimpeded ability

to liquidate collateral and close out or transfer positions in a

timely manner;

(5) Finality of settlement and funds transfers that are

irrevocable and unconditional when effected (when Applicant's

accounts are debited and credited); and

(6) Other significant aspects of Applicant's operations, risk

management procedures, and related requirements.

b. If Applicant provides, or will provide, clearing services

outside the United States, Applicant must (i) provide a memorandum

from local counsel analyzing insolvency issues in the foreign

jurisdiction where Applicant is based and (ii) describe or otherwise

document:

(1) How Applicant has identified and addressed any conflict of

law issues;

(2) Which jurisdiction's law is intended to apply to each aspect

of Applicant's operations;

(3) The enforceability of Applicant's choice of law in relevant

jurisdictions; and

(4) That its rules, procedures, and products are enforceable in

all relevant jurisdictions.

Issued in Washington, DC, on December 16, 2010, by the

Commission.

Sauntia S. Warfield,

Assistant Secretary of the Commission.

Appendices to Risk Management Requirements for Derivatives Clearing

Organizations--Commission Voting Summary and Statements of

Commissioners

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendix 1--Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Dunn,

Sommers, Chilton and O'Malia voted in the affirmative; no

Commissioner voted in the negative.

Appendix 2--Statement of Chairman Gary Gensler

I support the proposed rulemaking for risk management

requirements for derivatives clearing organizations (DCOs). The

proposal establishes robust risk management standards, which is

particularly important as more swaps are moved into central

clearinghouses. The proposed rule meets or exceeds international

standards and recommendations. It establishes methodologies for

clearinghouses to set margin with regard to swaps contracts.

The proposed regulations will enhance legal certainty for DCOs,

clearing members and market participants by providing a regulatory

framework to support DCO risk management practices. This will help

strengthen the financial integrity of the futures and swap markets.

The proposed participant eligibility requirements will promote fair

and open access to clearing. Importantly, the proposal addresses

rules of how a futures commission merchant can become a member of a

swaps clearinghouse. The proposal promotes more inclusiveness while

allowing the clearinghouses to scale a member's participation and

risk based upon its capital.

The proposal would establish a registration application form to

bring about greater uniformity and transparency in the DCO

application process and facilitate greater efficiency and

consistency in processing submissions.

[FR Doc. 2011-690 Filed 1-19-11; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: January 20, 2011