|All Other Programs||75%|
|All Other Programs||75%|
The FY 2012 Budget is for $77,564,000 and 250 FTE, of which $26,646,000 and 82 FTE relate to Dodd Frank. The 82 FTE increase for Dodd-Frank are allocated to the following subprograms: Market Surveillance/Data Management (44), Market and Product Review (32), and Market Compliance (6).
The Dodd-Frank Act created two new categories of registered entities, SEFs and SDRs, for which the Market Oversight program will have direct regulatory responsibility. It also imposed significant new regulatory requirements for registered entities and market participants for which the Market Oversight program oversees. The Dodd-Frank Act also created an entirely new regulatory category of registered entity – registered FBOTs – for which the Market Oversight program will need to construct new regulatory requirements and administer them on an ongoing basis. In addition, the Dodd-Frank Act established significant new requirements in the context of already established Market Oversight programs. For instance, the new legislation imposed new self-regulatory responsibilities for the existing designated contract markets (DCMs) and mandated that the Commission dramatically increase the number of contracts that must be subject to Commission-established speculative position limits.
The Market Oversight program is drafting a substantial set of new regulations to implement all of these requirements through at least July 2011, and will be responsible for the administration of those regulatory schemes going forward from July 2011. The adoption of the new regulations will begin a period of a substantial additional responsibility for Market Oversight as it is expected that a large number of entities will submit applications in each of the new regulated market categories and a substantial community of new market participants will become subject to Commission oversight for the first time.
The Dodd-Frank Act’s significant new regulatory requirements will lead to a concomitant increase in need for legal support from the Chief Counsel’s Office to the other units of the Market Oversight program. For example, the Dodd-Frank Act will dramatically increase the number of products that will be subject to CFTC-set speculative position limits. While the ongoing administration of those new requirements will be the responsibility of the Market Surveillance program, the Chief Counsel’s Office will be responsible for drafting the new position limit regulations, producing formal and informal interpretations of those new provisions, and drafting appropriate revisions to those regulations when necessary. Likewise, the Chief Counsel’s Office will be responsible for drafting new regulations in connection with the SDR category and updating those requirements as necessary as SDRs are overseen by the Market Surveillance Unit’s Data Management subprogram.
Finally, the most significant new addition to the duties of the Chief Counsel’s Office generated by the Dodd-Frank Act is the creation of a new Registered FBOT category. Although this new category will obviate the need for the current FBOT no-action letter program, the substantive requirements that will be imposed on Registered FBOTs will likely be more robust than the requirements imposed under the no-action regime and the number of FBOTs that will need to register with the Commission will also likely be larger. Even assuming adequate funding of all of the CFTC’s current and new oversight duties with respect to domestically-traded derivatives, if there are insufficient funds to adequately support the Chief Counsel’s office Registered FBOT sub-program, US-based derivatives market participants could use modern communication technology to move their activity to inadequately monitored FBOTs and thus evade the important regulatory scheme established by the Dodd-Frank Act.
Market Surveillance (and the Data Management Office). Market Surveillance is requesting 137 FTE, 66 additional FTE above the FY 2011 budget. Of the 66 FTE, 44 are related to Dodd-Frank. These additional FTE will support both the surveillance function and the data management function of the Market Surveillance program.
The Dodd-Frank Act expanded the responsibilities of the Market Surveillance Unit in a number of significant regards. First, it mandated the imposition of Commission-set speculative position limits to all DCM futures contracts based on non-financial commodities (e.g., agricultural, energy, and metal contracts). Accordingly, the universe of contracts subject to such limits will expand from the current nine to potentially hundreds of contracts. Second, it expanded the Commission’s position-limit-setting authority beyond futures contracts to swaps that perform a significant price discovery function. Finally, the Dodd-Frank Act directs the Commission, for the first time, to establish cross-market aggregate position limits. Cross-market limits will span not only futures and swap contracts listed on different exchanges, such as DCMs, FBOTs and SEFs, they will also reach bi-laterally-traded swaps. The complexity and scope of these new position limits is without regulatory precedent for the Commission.
The number of surveillance staff assigned to provide adequate oversight and analysis of trading activity on DCMs, FBOTs, SEFs, and over-the-counter physical commodity swaps will be increased to support those staff currently focusing on oversight and analysis of trading on DCMs. In order to detect and deter market manipulation, these staff members must make use of sophisticated automated surveillance programs to detect unwarranted price changes, concentrations of market power, and abusive trading practices across the markets (DCMs, FBOTs, and SEFs) and over-the-counter transactions involving counterparties that have invoked end-user exemptions. Specifically, Market Surveillance plans to establish four commodity-specific surveillance branches (including branch managers), focused on energy, financials, metals and soft commodities (e.g., coffee, sugar and cocoa), and agricultural products. Further, other staff will be needed to provide policy guidance, program management, analysis and automated prototyping support to these branches.
In regards to the Data Management Office, the Dodd-Frank Act expanded the scope of data collection to include a large trader reporting system for swaps (Swaps LTRS). This Swaps LTRS would provide the Commission staff with information on the size and counterparties of swaps prior to the formation of SDRs and SEFs. In addition, by converting swaps (including swaptions and certain options) to futures equivalent positions, the Swaps LTRS potentially will provide information not otherwise collected by SDRs or SEFs, specifically, risk equivalent positions (i.e., delta adjusted swaption and option positions).
The effectiveness gained through automation will allow Commission staff to periodically conduct audits of the firms to assure that information is being properly and accurately submitted. Limited funding has severely curtailed the number of audits conducted, potentially affecting the accuracy of data collected and the ability of surveillance analysts to properly oversee activity in the market. For example, if accounts are not aggregated properly, it is impossible to accurately track speculative limit violations, which can create significant risk to the marketplace. In addition, the Dodd-Frank Act requires the Commission to publicly report aggregated swap position data (without disclosing the positions of individual market participants) that it derives from transaction data provided by clearing organizations, swaps repositories and parties otherwise required to report directly to the Commission. The complexity and volume of swap transaction data is expected to be substantial and greatly add to the current volume of data for which the Commission collects, assembles, analyzes, and reports.
The number of staff assigned to Data Management is projected to increase to provide an adequate level of staff to accomplish quality control and review of data to be received from five or more SDRs and to establish automated checks of data arising from an estimated thirty or more SEFs. The increase of staff will enable Market Oversight to review SEF and SDR data flows and to establish, maintain and analyze database structures and data dictionaries associated with swap transactions. Other additional staff members will provide program management to accommodate future innovations in the swaps industry.1
The current marketplace demands sophisticated surveillance to adequately protect the public. The growth in the number and different types of facilities that trade a wide array of derivatives products, including futures on OTC instruments, contracts based on events or occurrences, and nontraditional contracts, as well as, novel approaches to derivatives trading that must be overseen by experienced staff to monitor these products and examine the benefits and risks to the public arising from these developments. To adequately protect the public, effective surveillance and oversight of exchanges and product design requires adequate staff to monitor an increasingly, complex futures, options and swaps marketplace.
The increasing inter-relationship among exchange-traded contracts, OTC swaps products, and cash markets, involving many commodity areas, increases the complexity of conducting surveillance to detect manipulative strategies and to understand the factors causing price movements. Furthermore, the Commission anticipates that new technology and a number of new market plans and new trade execution methods will be adopted by exchanges. In addition, the development of new technology, side-by-side trading, and directly competitive markets creates the potential for new types of abuses across markets as well as abuses that utilize these capabilities.
Adequate staff is critical to enable the Market Oversight program to focus on the complex issues and changing practices in the derivatives markets, especially in the energy and agricultural sectors. Without adequate staff and technology resources, the Market Oversight program cannot keep up with the growth in new types of exchanges, new trading execution methods in futures markets, and the initiation of trading in new, innovative complex products that require detailed analysis and raise substantive legal and policy questions. In addition, resources are required to conduct necessary reviews to ensure that exchanges adequately address potential conflicts of interest between their self-regulatory functions and responsibilities and their commercial interests. Congress, through the Dodd-Frank Act, has shown particular interest in ensuring that the Commission adequately reviews the operations of derivatives markets to ensure that they are free from the potential for manipulation, excessive speculation, and disruptive trading practices of the past. For example, witness the dramatic expansion of the Commission position limit authority with mandatory position limits for all non-financial derivative products that expand to include positions originated on different domestic and foreign exchanges and through bilateral trading. Without adequate resources, staff will not be able to fulfill these important new legislative mandates, and could thus allow traders to use these markets to carry out manipulations or abusive trading strategies.
The expansion of the Commission’s jurisdiction to swap products generally will increase the burden on Surveillance staff to a level that puts at significant risk the Commission’s strategic goal to detect and deter price manipulation without new expert staff. Proper surveillance coverage of markets requires highly specialized and comprehensive knowledge of the underlying markets. Surveillance economists currently are required to cover many, often diverse markets, limiting the amount of expertise and attention that can be devoted to each market. It is likely that this situation will only deteriorate without adequate staffing. Thus, some price manipulations and abusive trading practices will go undetected or will be detected too late to permit amelioration or intervention. Also, staff will not be able to assess trader participation in the markets to evaluate the extent of speculative and commercial activity. In particular, there is a substantial risk that abusive trading in agricultural and energy futures markets will go undetected, potentially costing American consumers hundreds of millions of dollars. This is of critical importance during recent periods of unprecedented prices and volatility in many commodity markets.
Market and Product Review. The Market and Product Review Office is requesting 60 FTE, 30 additional FTE above the FY 2011 budget. Between FY 2011 and FY 2012 an additional 32 FTE are allocated to Dodd-Frank responsibilities and two (2) less FTE to pre-Dodd-Frank responsibilities.
The Dodd-Frank Act establishes a number of new regulatory requirements that will substantially increase the responsibilities of the Market and Product Review subprogram.
First, it alters significantly the contract and rule review process for exchanges by establishing a ten-day review process (rather than the immediate effectiveness feature of the current rule submission process) and gives the Commission discretion to extend that review period to ninety days for contract amendments and rules that raise novel or complex issues or that are inadequately explained. The Market and Product Review subprogram would have substantial authority to administer this new rule review process, which would require immediate attention to all submissions to evaluate the product and rule submissions within 10 days. In addition, the contract review program would be expanded by new authority to prohibit the listing of certain event contracts that are deemed to be contrary to the public interest, requiring additional resources to carry out this new mandate.
Second, it significantly expands the self-regulatory obligations of DCMs by establishing five new DCM Core Principles and modifying others in the areas of competitive trading on the centralized market, exchange finances, systems security, governance and information-sharing. Proposed implementing regulations will require that existing exchanges certify compliance with the new and modified core principles, which expands the subprogram’s review responsibilities.
Third, the Dodd-Frank Act creates an entirely new regulated market category in the form of SEFs. The Market and Product Review subprogram will have substantial responsibility for formulating the implementing rules to the Act, and the regulatory framework for SEFs to operate. Once the rules and regulatory framework are established, the Market and Product Review subprogram will have responsibility for the review and oversight of its rules and activities, along with the Compliance subprogram that will conduct periodic examinations, or rule enforcement reviews (RERs), to evaluate ongoing compliance with extensive self-regulatory obligations. The Market and Product Review subprogram has 13 FTE dedicated to the rule review process as of September 30, 2010. With 17 DCMs, this works out to an oversight ratio of one FTE for 1.3 DCMs.
Finally, the Dodd-Frank Act establishes a “mandatory” exchange-trading requirement for standardized swaps such that standardized swaps must, with only limited exceptions, trade on either a DCM or a SEF. The Market and Product Review subprogram must evaluate individual swaps products and determine which swaps must be traded in an exchange environment and which qualify for an exception. Additional resources are needed to accomplish this mandate given the large number of swaps currently traded and the complex nature of many of these products. Thus, DCMs will be taking on an entire new category of products, which will further expand the Market and Product Review subprogram. Further, for each swap made available for trading, Market and Product Review expects to conduct a due diligence review of the mechanics of the trade in order to assess which swap trades must be reported in real-time and which trades are eligible for a delay.
Based upon expected applications from existing, operating ECMs and EBOTs, interest from numerous interdealer brokers; interest from investment firms who want to set up markets; subsidiaries; interest from information service providers and an expectation that some DCMs may set up separate SEF arms, it is estimated that, approximately 30 to 40 entities will register as SEFs. Based on the number of products available for trading on those market venues, it is reasonable to expect that the number of products to be reviewed will be several hundred, conservatively speaking, and could be well above a thousand. These new products and markets represent an entirely new regulatory scheme – which is separate from and in addition to the current programs maintained by Market and Product Review.
Additional attorneys and economists are needed to help establish and implement the Dodd-Frank Act as well as carry on the current regulatory work of Market and Product Review, including reviewing applications for designation as contract markets, reviewing new futures and option contract filings, reviewing rule submissions, reviewing changes in ownership structures, and developing new rules and policies to accommodate innovations in the industry. Without the additional staff, it will be difficult, if not impossible, for Market and Product Review to complete in a timely manner the review of SEF registrations and their rules as well as oversee the operation of the SEFs once registered. The addition to the rule review process of 30 to 40 SEFs would raise the ratio of DCMs and SEFs overseen per FTE from one FTE for each 1.31 DCMs to between 3.62 to 4.38 DCMs and SEFs for each FTE. Under such conditions, it is very likely that reviews would be delayed and existing entities would have to wait to begin operations. Likewise, the review of applications for DCMs likely would be compromised in the rush to review those applications along with the SEF applications. Further, without the requested additional staff, the current work of Market and Product Review would be jeopardized. For example, without sufficient staff to review the numerous daily rule submissions, it would be possible that new products and rule amendments would be certified and implemented by DCMs without the proper review. In short, the current staff is insufficient to handle the new and current workload, and maintaining the current number of staff will have detrimental effects on the Market and Product Review Program.
For the CFTC, the most fundamental change triggered by the Dodd-Frank Act is the expansion of its regulatory jurisdiction to the heretofore un-regulated swaps markets. As described above, the Market Oversight program will expand to include market monitoring responsibilities over two new regulatory categories exclusively dealing with swaps ─ SEFs and SDRs. Without additional resources and personnel, the Market Oversight program’s ability to implement the new oversight requirements for these new regulated entities (SEFs and SDRs) would be severely handicapped, would prevent Market Oversight from fulfilling the public reporting and transparency requirements, and would result in markets operating without robust surveillance and compliance reviews. The swaps markets would continue to have inadequate or no supervision, increasing the potential for market participants to engage in market abuses. Depending on their scale, such abuses could have far-reaching dire consequences for the national and international economy.
The Market and Product Review Section will also be responsible for carrying out many of the regulatory duties associated with the real-time public reporting requirement for swaps trading established by the Dodd-Frank Act. For example, the unit will have to assign economists to regularly monitor swap trading on SEFs covering the various asset classes to assess whether block trading levels appropriately represent “large” transactions in the underlying swaps market and, accordingly, merit an exception for the real-time reporting requirement. In addition, economist and market experts will have to review filings by SEFs related to the control determination as to whether a particular swap is “made available” for trading thus trades must take place on a SEF.
Market Compliance. The Market Compliance Office is requesting 53 FTE for an increase of 15 above the FY 2011 budget. Of the 15 FTE, 6 are related to Dodd-Frank.
Effective implementation of Dodd-Frank will require that Market Compliance revamp and greatly expand its RER program. First, the establishment of new regulatory responsibilities for DCMs in the form of new and revised core principles will necessitate that the Market Compliance subprogram expand to include evaluations of the effectiveness of the DCMs’ enforcement of those new requirements. Second, the establishment of two brand new registered entity categories ─ SDRs and SEFs ─ will significantly expand the quantity of RERs but also the character of RERs to reflect the unique self-regulatory responsibilities of those categories. The Commission expects 30 to 40 entities to register as SEFs and, at a minimum, five entities to register as SDRs. Finally, the Dodd-Frank Act’s expansion of Commission jurisdiction to swaps may force the Market Compliance subprogram to revamp certain aspects of its RER to accommodate these heretofore unregulated instruments. The Market Compliance subsection dedicated approximately 25 FTE, as of September 30, 2010, to conducting RERs of DCMs. With 17 DCMs, this works out to an oversight ratio of one FTE for 0.68 DCMs. The addition of 30 to 40 SEFs would increase the oversight ratio to at least between 2.08 to 2.48 DCMs, SEFs and SDRs for one FTE. Without the requested resources, Market Compliance will not be able to enhance and expand its RER program as necessary to ensure that DCMs, SEFs, and SDRs are complying with the new statutory requirements enumerated in Dodd-Frank.2 This poses an unacceptable risk to the general public.
The Dodd-Frank Act will also require the Market Compliance program to integrate swaps transaction data into its new automated trade practice alert system, known as the TSS. TSS is critical for Market Compliance’s investigation program. This will require dedicating significant resources to ensure the swaps data is received in a standardized format, to analyze the data, and to draft business requirements for trade detection alerts. If swaps data is not integrated into TSS, Market Compliance will be unable to monitor swap transactions for potential trade practice violations. This is extremely problematic and puts the general public at great risk because no DCM or SEF will have all the swaps data necessary to detect potential trade violations across markets. Dodd-Frank mandates that most, or cleared, swaps be fungible. Thus, a single swap contract can potentially trade on more than one DCM or SEF. This means that there is the opportunity for a market participant to use more than one SEF or DCM to commit a single trade practice violation, such as trading ahead.
The Dodd-Frank Act makes fundamental changes to the U.S. financial regulatory system, including new obligations with respect to the oversight of swaps markets. Without additional resources and personnel, it would prevent or severely handicap the Market Oversight’s ability to implement the new oversight requirements over the new regulated entities (SEFs and SDRs), would prevent Market Oversight from fulfilling the public reporting and transparency requirements, and would result in markets operating without robust surveillance and compliance reviews.
Chief Counsel’s Office. The Chief Counsel is responsible for the issuance of rules and regulations related to oversight of regulated futures markets; the issuance of interpretations, policy statements, and no-action letters in connection with issues related to markets; the review of division matters generally to ensure their consistency with the CEA and the Commission’s regulations; and the review of matters originated by other divisions of the Commission to determine whether they implicate the division’s interests in any manner.
Market Surveillance. The detection and prevention of price manipulation are the responsibility of surveillance economists who monitor all active futures and option contracts for potential problems. The staff requested for the existing Market Surveillance program will work to detect and prevent threats of price manipulation and other market disruptions caused by abusive trading practices in listed futures and option contracts. They will investigate instances of possible manipulation, and analyze routine reports of large-trader activity. The innovation in and diversity of contracts listed for trading as well as the volume of contracts traded on a daily basis has increased enormously in recent years. Price linkages between contracts traded, in different venues, has increased the complexity of the surveillance mission to understand manipulative strategies that may occur across markets. Without additional resources, new surveillance burdens will need to be allocated among existing staff, reducing the effectiveness and timeliness of their analyses and constraining the ability of staff to react to new potential sources of manipulation or disruptive behavior.
Data Management Office (within Market Surveillance Unit). Detecting and preventing price manipulation in the markets under its jurisdiction rests on the ability to efficiently and effectively capture data and ensure its quality, accessibility, and storage management. The staff currently processes data records from between 250-270 firms daily and collects approximately 110 million records every year through a business process that is not fully automated. The application of technology and business process reengineering are essential to ensuring the integrity of the data and its timely accessibility.
Market and Product Review. The Market and Product Review subprogram oversees the regulatory and oversight activities of all DCMs to ensure customer protection and market integrity. In order to serve the vital price-discovery and hedging functions of futures and option markets, exchanges must provide consumers with safe marketplaces that have appropriate protections in place and provisions for ensuring the fairness of the market and the integrity of their contracts. To accomplish this, the subprogram evaluates all exchange applications for approval as a contract market to ensure that the exchange is in compliance with DCM Core Principles and Commission regulations, and that the public is appropriately protected. The reviews, which are required by the CEA, ensure that exchanges provide for fair, equitable and secure markets and that they have appropriate self regulatory programs in place to police their markets.
Market Compliance. The Market Compliance subprogram oversees the regulatory and oversight activities of all DCMs to ensure customer protection and market integrity. The cornerstone of the Market Compliance program is the RER program that consists of examinations of DCM self-regulatory programs on an ongoing routine basis to assess their compliance with applicable Core Principles under the CEA and Commission regulations. Different aspects of DCMs’ compliance and surveillance programs are reviewed: audit trails, trade practice surveillance, disciplinary, and dispute resolution programs. Results are documented in comprehensive reports and if issues are identified, specific recommendations for improvement are made. Unfortunately, due to limited resources, RERs of a given exchange are periodic in nature rather than annual evaluations, which is necessary to ensure comprehensive oversight. As a result, the subprogram is planning to establish a program for annual review of exchange programs. The less frequent timing of these reviews dilutes their ability to promote and enhance effective self-regulation and ensure that exchanges rigorously enforce compliance with their rules. There is a risk that an ineffective DCM self-regulatory program may go undetected or a systemic risk may not be identified posing a risk to the general public. The SEC maintains an “inspection” program similar to the Commission’s RER program. Under this program, the SEC reviews its major exchanges annually and its smaller exchanges every two to three years for compliance with various securities laws and regulations.
The current marketplace demands a sophisticated level of surveillance to adequately protect the public. To adequately protect the public, effective surveillance and oversight of exchanges and product design requires adequate staff to monitor the increasing number of innovative and often complex futures, options and swaps contracts to detect or prevent potential problems, price manipulation, and other major market disruptions caused by abusive trading practices or contract design flaws and to deter and prevent price manipulation and investigate suspect activity.
The requested staff levels for existing activities is critical to enable the Market Oversight program to focus on the complex issues and changing practices in the futures and option markets, and especially in the newly overseen swaps markets. Without adequate staff and technology resources, the Market Oversight program cannot keep up with the growth in new types of exchanges, new trading execution methods, and the initiation of trading in new, innovative complex products that require detailed analysis and raise substantive legal and policy questions. In addition, resources are required to conduct necessary reviews to ensure that DCMs and SEFs adequately address potential conflicts of interest between their self-regulatory functions and responsibilities, and their commercial interests. Without adequate resources, staff will not be able to complete reviews in a timely manner, allowing traders to continue to use these markets to carry out manipulations or abusive trading strategies in that regulatory oversight.
|Subprogram||FY 2011||FY 2012||Change|
|Market & Product Review||7,409||30.00||18,767||60.00||11,358||30.00|
|Program Activity||FY 2011||FY 2012||Change|
|Market & Product Review||24%|
|Outcomes||FY 2011||FY 2012||Change|
|GOAL ONE: Protect the economic functions of the commodity futures, options and swaps markets.|
|1.1 Futures, options and swaps markets that accurately reflect the forces of supply and demand for the underlying commodity and are free of disruptive activity.||$21,948||91.45||$48,053||155.28||$26,105||63.83|
|1.2 Markets that can be monitored to ensure early warning of potential problems or issues that could adversely affect their economic vitality.||1,805||7.37||8,223||26.53||6,418||19.16|
|Subtotal Goal One||$23,753||98.82||$56,276||181.81||$32,523||82.99|
|GOAL TWO: Protect market users and the public.|
|GOAL THREE: Foster open, competitive, and financially sound markets.|
|3.2 Commodity futures, options and swaps markets are effectively regulated.||$7,177||28.69||$15,412||49.39||$8,235||20.70|
|3.3 Markets are free of trade practice abuses.||2,336||9.27||3,881||12.42||1,545||3.15|
|3.4 Regulatory environment is responsive to evolving market conditions.||548||2.22||1,995||6.38||1,447||4.16|
|Subtotal Goal Three||$10,061||40.18||$21,288||68.19||$11,227||28.01|
1 In order to maintain and then increase its current level of functionality, as mandated by the Dodd-Frank Act, Market Surveillance and the Data Management Office will be similarly maintaining and increasing its presence in both the Chicago and New York offices – in addition to the increase in personnel at the Washington D.C. headquarters. (back to text)
2 In order to maintain and then increase its current level of functionality, as mandated by the Dodd-Frank Act, Market Compliance will have to similarly maintain and increase its presence in both the Chicago and New York offices – in addition to the increase in personnel at the Washington D.C. headquarters. (back to text)