2016-18213

Federal Register, Volume 81 Issue 148 (Tuesday, August 2, 2016)

[Federal Register Volume 81, Number 148 (Tuesday, August 2, 2016)]

[Notices]

[Pages 50690-50692]

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

[FR Doc No: 2016-18213]

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COMMODITY FUTURES TRADING COMMISSION

Agency Information Collection Activities Under OMB Review

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice.

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SUMMARY: In compliance with the Paperwork Reduction Act of 1995, (PRA),

this notice announces that the Information Collection Request (ICR)

abstracted below has been forwarded to the Office of Management and

Budget (OMB) for review and comment. The ICR describes the nature of

the information collection and its expected costs and burden.

DATES: Comments must be submitted on or before September 1, 2016.

ADDRESSES: Comments regarding the burden estimated or any other aspect

of the information collection, including suggestions on reducing the

burden, may be submitted directly to the Office of Information and

Regulatory Affairs (OIRA) in OMB, within 30 days of the notice's

publication, by email at [email protected]. Please identify

the comments by OMB Control No. 3038-0111. Please provide the

Commission with a copy of all submitted comments at the address listed

below. Please refer to OMB Reference No. 3038-0111, found on http://reginfo.gov. Comments may also be mailed to the Office of Information

and Regulatory Affairs, Office of Management and Budget, Attention:

Desk Officer for the Commodity Futures Trading Commission, 725 17th

Street NW., Washington, DC 20503; or through the Agency's Web site at

http://comments.cftc.gov. Follow the instructions for submitting

comments through the Web site.

Comments may also be mailed to: Christopher Kirkpatrick, Secretary

of the Commission, Commodity Futures Trading Commission, Three

Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand

Delivery/Courier at the same address.

A copy of the supporting statements for the collection of

information discussed above may be obtained by visiting http://

RegInfo.gov. 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.

For Further Information or a Copy Contact: Laura B. Badian,

Assistant General Counsel, 202-418-5969, [email protected]; Paul

Schlichting, Assistant General Counsel, 202-418-5884,

[email protected]; or Herminio Castro, Counsel, (202) 418-6705,

[email protected]; Office of the General Counsel, Commodity Futures

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

Washington, DC 20581. Please refer to OMB Control No. 3038-0111 in any

correspondence.

SUPPLEMENTARY INFORMATION:

Title: Margin Requirements for Uncleared Swaps for Swap Dealers and

Major Swap Participants; Comparability Determinations with Margin

Requirements, (OMB Control No. 3038-0111). This is a request for a

revision of an information collection.

Abstract: Section 731 of the Dodd-Frank Wall Street Reform and

Consumer Protection Act (``Dodd-Frank Act''),\1\ amended the Commodity

Exchange Act (``CEA''), to add, as section 4s(e) thereof, provisions

concerning the establishment of initial and variation margin

requirements for swap dealers and major swap participants.\2\ Each swap

dealer and major swap participant for which there is a Prudential

Regulator, as defined in section 1a(39) of the CEA,\3\ must meet margin

requirements established by the applicable Prudential Regulator, and

each swap dealer and major swap participant for which there is no

Prudential Regulator (collectively, ``Covered Swap Entities'' or

``CSEs'') must comply with the Commission's margin requirements. With

regard to the cross-border application of the swap provisions enacted

by Title VII of the Dodd-Frank Act, section 2(i) of the CEA provides

the Commission with express authority over activities outside the

United States relating to swaps when certain conditions are met.

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

the CEA relating to swaps enacted by Title VII of the Dodd-Frank Act

(including Commission rules and regulations promulgated thereunder)

shall not apply to activities outside the United States unless those

activities (1) have a direct and significant connection with activities

in, or effect on, commerce of the United States or (2) contravene such

rules or regulations as the Commission may prescribe or promulgate as

are necessary or appropriate to prevent the evasion of any provision of

Title VII.\4\ Because margin requirements are critical to ensuring the

safety and soundness of a CSE and the stability of the U.S. financial

markets, the Commission believes that its margin rules should apply on

a cross-border basis in a manner that effectively addresses risks to a

CSE and the U.S. financial system.

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\1\ Pub. L. 111-203, 124 Stat. 1376 (2010).

\2\ 7 U.S.C. 6s(e).

\3\ 7 U.S.C. 1a(39).

\4\ 7 U.S.C. 2(i).

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On May 31, 2016, the Commission published a Final Rule addressing

the cross-border application of its margin requirements for uncleared

swaps of CSEs (with substituted compliance available in certain

circumstances), except as to a narrow class of uncleared swaps between

a non-U.S. CSE and a non-U.S. counterparty that fall within a limited

exclusion (the ``Exclusion'').\5\ As described below, the adopting

release for the Final Rule contained a collection of information

regarding requests for comparability determinations, which was

previously included in the proposing release, and for which the Office

of Management and Budget (``OMB'') assigned OMB control number 3038-

0111, titled ``Margin Requirements for Uncleared Swaps for Swap Dealers

and Major Swap Participants; Comparability Determinations with Margin

Requirements.'' In addition, the adopting release included two

additional information collections regarding non-segregation

jurisdictions \6\ and non-netting jurisdictions \7\ that were

[[Page 50691]]

not previously proposed. Accordingly, the Commission is requesting

approval by OMB of the revised information collection under OMB Control

Number 3038-0111.

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\5\ 81 FR 34818 (May 31, 2016).

\6\ As used in the adopting release, a ``non-segregation

jurisdiction'' is a jurisdiction where inherent limitations in the

legal or operational infrastructure of the foreign jurisdiction make

it impracticable for the CSE and its counterparty to post initial

margin pursuant to custodial arrangements that comply with the

Commission's margin rules, as further described in section II.B.4.b

of the adopting release.

\7\ As used in the adopting release, a ``non-netting

jurisdiction'' is a jurisdiction in which a CSE cannot conclude,

with a well-founded basis, that the netting agreement with a

counterparty in that foreign jurisdiction meets the definition of an

``eligible master netting agreement'' set forth in the Final Margin

Rule, as described in section II.B.5.b of the adopting release.

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Section 23.160(d) of the Final Rule includes a special provision

for non-netting jurisdictions. This provision allows CSEs that cannot

conclude after sufficient legal review with a well-founded basis that

the netting agreement with a counterparty in a foreign jurisdiction

meets the definition of an ``eligible master netting agreement'' set

forth in the Commission's final margin rule (``Final Margin Rule'') \8\

to nevertheless net uncleared swaps in determining the amount of margin

that they post, provided that certain conditions are met.\9\ In order

to avail itself of this special provision, the CSE must treat the

uncleared swaps covered by the agreement on a gross basis in

determining the amount of initial and variation margin that it must

collect, but may net those uncleared swaps in determining the amount of

initial and variation margin it must post to the counterparty, in

accordance with the netting provisions of the Final Margin Rule.\10\ A

CSE that enters into uncleared swaps in ``non-netting'' jurisdictions

in reliance on this provision must have policies and procedures

ensuring that it is in compliance with the special provision's

requirements, and maintain books and records properly documenting that

all of the requirements of this exception are satisfied.\11\

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\8\ See Margin Requirements for Uncleared Swaps for Swap Dealers

and Major Swap Participants, 81 FR 636 (Jan. 6, 2016). The Final

Margin Rule, which became effective April 1, 2016, is codified in

part 23 of the Commission's regulations. See 17 CFR 23.150-159, 161.

\9\ The Final Margin Rule permits offsets in relation to either

initial margin or variation margin calculation when (among other

things), the offsets related to swaps are subject to the same

eligible master netting agreement. This ensures that CSEs can

effectively foreclose on the margin in the event of a counterparty

default, and avoids the risk that the administrator of an insolvent

counterparty will ``cherry-pick'' from posted collateral to be

returned.

\10\ In the event that the special provision for non-segregation

jurisdictions applies to a CSE, then the special provision for non-

netting jurisdictions would not apply to the CSE even if the

relevant jurisdiction is also a ``non-netting jurisdiction.'' In

this circumstance, the CSE must collect the gross amount of initial

margin in cash (but would not be required to post initial margin),

and post and collect variation margin in cash in accordance with the

requirements of the special provision for non-segregation

jurisdictions, as discussed in section II.B.4.b.

\11\ See Sec. 23.160(d) of the Final Rule.

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Section 23.160(e) of the Final Rule includes a special provision

for non-segregation jurisdictions that allows non-U.S. CSEs that are

Foreign Consolidated Subsidiaries (as defined in the Final Rule) and

foreign branches of U.S. CSEs to engage in swaps in foreign

jurisdictions where inherent limitations in the legal or operational

infrastructure make it impracticable for the CSE and its counterparty

to post collateral in compliance with the custodial arrangement

requirements of the Commission's margin rules, subject to certain

conditions. In order to rely on this special provision, a Foreign

Consolidated Subsidiary or foreign branch of a U.S. CSE is required to

satisfy all of the conditions of the rule, including that (1) inherent

limitations in the legal or operational infrastructure of the foreign

jurisdiction make it impracticable for the CSE and its counterparty to

post any form of eligible initial margin collateral for the uncleared

swap pursuant to custodial arrangements that comply with the

Commission's margin rules; (2) foreign regulatory restrictions require

the CSE to transact in uncleared swaps with the counterparty through an

establishment within the foreign jurisdiction and do not permit the

posting of collateral for the swap in compliance with the custodial

arrangements of section 23.157 of the Final Margin Rule in the United

States or a jurisdiction for which the Commission has issued a

comparability determination under the Final Rule with respect to

section 23.157; (3) the CSE's counterparty is not a U.S. person and is

not a CSE, and the counterparty's obligations under the uncleared swap

are not guaranteed by a U.S. person; \12\ (4) the CSE collects initial

margin in cash on a gross basis, and posts and collects variation

margin in cash, for the uncleared swap in accordance with the Final

Margin Rule; (5) for each broad risk category, as set out in section

23.154(b)(2)(v) of the Final Margin Rule, the total outstanding

notional value of all uncleared swaps in that broad risk category, as

to which the CSE is relying on section 23.160 (e), may not exceed 5

percent of the CSE's total outstanding notional value for all uncleared

swaps in the same broad risk category; (6) the CSE has policies and

procedures ensuring that it is in compliance with the requirements of

this provision; and (7) the CSE maintains books and records properly

documenting that all of the requirements of this provision are

satisfied.\13\

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\12\ The Commission would expect the CSE's counterparty to be a

local financial end user that is required to comply with the foreign

jurisdiction's laws and that is prevented by regulatory restrictions

in the foreign jurisdiction from posting collateral for the

uncleared swap in the United States or a jurisdiction for which the

Commission has issued a comparability determination under the Final

Rule, even using an affiliate.

\13\ See 17 CFR 23.160(e).

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The new information collections covered by this notice require CSEs

to have policies and procedures ensuring that they are in compliance

with all of the requirements of the special provisions for non-netting

jurisdictions and non-segregation provisions, respectively, and to

maintain books and records properly documenting that all of the

requirements of the special provisions for non-netting jurisdictions

and non-segregation jurisdictions, respectively, are satisfied. Both

information collections are necessary as a means for the Commission to

be able to determine that CSEs relying on these special provisions are

entitled to do so and are complying with the special provisions'

requirements. Both information collections are also necessary to

implement sections 4s(e) of the CEA, which mandates that the Commission

adopt rules establishing minimum initial and variation margin

requirements for CSEs on all swaps that are not cleared by a registered

derivatives clearing organization, and section 2(i) of the CEA, which

provides that the provisions of the CEA relating to swaps that were

enacted by Title VII of the Dodd-Frank Act (including any rule

prescribed or regulation promulgated thereunder) apply to activities

outside the United States that have a direct and significant connection

with activities in, or effect on, commerce of the United States.

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 OMB control number. The Commission did not receive any

comments on the 60-day Federal Register notice, 81 FR 34855, dated May

31, 2016.

Burden Statement--Information Collection for Non-Netting

Jurisdictions: The Commission estimates that approximately 54 CSEs may

rely on section 23.160(d) of the Final Rule.\14\ Furthermore, the

Commission estimates that these CSEs would incur an average of 10

annual burden hours to maintain books and records properly documenting

that all of the

[[Page 50692]]

requirements of this exception are satisfied (including policies and

procedures ensuring that they are in compliance). Based upon the above,

the estimated hour burden for collection is calculated as follows:

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\14\ Currently, there are approximately 106 swap entities

provisionally registered with the Commission. The Commission

estimates that of the approximately 106 swap entities that are

provisionally registered, approximately 54 are CSEs that are subject

to the Commission's margin rules as they are not subject to a

Prudential Regulator. Because all of these CSEs are eligible to use

the special provision for non-netting jurisdictions, the Commission

estimates that 54 CSEs may rely on section 23.160(d) of the Final

Rule.

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Estimated Number of Respondents per Year: 54.

Estimated Burden Hours per Registrant: 10.

Estimated Total Annual Burden Hours: 540.

Frequency of Collection: Once; As needed.

Burden Statement--Information Collection for Non-

Segregation Jurisdictions: The Commission currently estimates that

there are between five and ten jurisdictions for which the first two

conditions specified above for non-segregation jurisdictions are

satisfied and where Foreign Consolidated Subsidiaries and foreign

branches of U.S. CSEs that are subject to the Commission's margin rules

may engage in swaps, or for purposes of the PRA estimate, an average of

7.5 non-segregation jurisdictions. The Commission estimates that

approximately 12 Foreign Consolidated Subsidiaries and foreign branches

of U.S. CSEs may rely on section 23.160(e) of the Final Rule in some or

all of these jurisdiction(s). The Commission estimates that each

Foreign Consolidated Subsidiary or foreign branch of a U.S. CSE relying

on this provision would incur an average of 20 annual burden hours to

maintain books and records properly documenting that all of the

requirements of this provision are satisfied (including policies and

procedures ensuring that they are in compliance) with respect to each

jurisdiction as to which they rely on the special provision. Thus,

based on the average of 7.5 non-segregation jurisdictions, the

Commission estimates that each of the approximately 12 Foreign

Consolidated Subsidiaries and foreign branches of U.S. CSEs that may

rely on this provision will incur an estimated 150 average burden hours

per year (i.e., 20 average burden hours per jurisdiction multiplied by

7.5). Based upon the above, the estimated hour burden for collection is

calculated as follows:

Estimated Number of Respondents per Year: 12.

Estimated Burden Hours per Registrant: 150.

Estimated Total Annual Burden Hours: 1,800 hours.

Frequency of Collection: Once; As needed.

There are no capital costs or operating and maintenance costs

associated with this collection.

Authority: 44 U.S.C. 3501 et seq.

Dated: July 27, 2016.

Christopher J. Kirkpatrick,

Secretary of the Commission.

[FR Doc. 2016-18213 Filed 8-1-16; 8:45 am]

BILLING CODE 6351-01-P

 

Last Updated: August 2, 2016