2012-1033

Federal Register, Volume 77 Issue 25 (Tuesday, February 7, 2012)[Federal Register Volume 77, Number 25 (Tuesday, February 7, 2012)]

[Rules and Regulations]

[Pages 6336-6409]

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

[FR Doc No: 2012-1033]

[[Page 6335]]

Vol. 77

Tuesday,

No. 25

February 7, 2012

Part III

Commodity Futures Trading Commission

-----------------------------------------------------------------------

17 CFR Parts 22 and 190

Protection of Cleared Swaps Customer Contracts and Collateral;

Conforming Amendments to the Commodity Broker Bankruptcy Provisions;

Final Rule

Federal Register / Vol. 77 , No. 25 / Tuesday, February 7, 2012 /

Rules and Regulations

[[Page 6336]]

-----------------------------------------------------------------------

COMMODITY FUTURES TRADING COMMISSION

17 CFR Parts 22 and 190

RIN Number 3038-AC99

Protection of Cleared Swaps Customer Contracts and Collateral;

Conforming Amendments to the Commodity Broker Bankruptcy Provisions

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Commodity Futures Trading Commission (the ``Commission'')

is adopting final regulations to implement new statutory provisions

enacted by Title VII of the Dodd-Frank Wall Street Reform and Consumer

Protection Act (the ``Dodd-Frank Act''). Specifically, these

regulations impose requirements on futures commission merchants

(``FCMs'') and derivatives clearing organizations (``DCOs'') regarding

the treatment of cleared swaps customer contracts (and related

collateral), and make conforming amendments to bankruptcy provisions

applicable to commodity brokers under the Commodity Exchange Act (the

``CEA'').

DATES: The rules will become effective April 9, 2012. All parties must

comply with the Part 22 rules by November 8, 2012. All parties must

comply with the Part 190 rules by April 9, 2012. Prior to the

compliance date for the Part 22 rules, the definition of 190.01(pp)

(``Cleared Swap'') shall be limited to transactions where the rules or

bylaws of a derivatives clearing organization require that such

transactions, along with the money, securities, and other property

margining, guaranteeing or securing such transactions, be held in a

separate account for Cleared Swaps only.

FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel,

Division of Clearing and Risk (DCR), at 202-418-5092 or

[email protected]; M. Laura Astrada, Associate Chief Counsel, DCR, at

202-418-7622 or [email protected]; Alicia Lewis, Special Counsel, DCR,

at 202-418-5862 or [email protected]; or Martin White, Assistant General

Counsel, Office of the General Counsel, at 202-418-5129 or

[email protected], in each case, at the Commodity Futures Trading

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

DC 20581.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Segregation Requirements.

B. Overview of the Clearing Process as it Relates to the

Segregation Requirements.

C. Segregation Alternatives.

D. Operation of the Segregation Models in an FCM Bankruptcy.

E. Solicitation of Public Input.

F. Clarification of the Application of Financial and Segregation

Interpretation No. 10 to Cleared Swaps.

II. The Final Rules

III. Segregation Model for Cleared Swaps Customer Collateral

A. Summary of the Comments.

B. Discussion of the Comments.

IV. Section by Section Analysis: Regulation Part 22

A. Regulation 22.1: Definitions.

B. Regulation 22.2--Futures Commission Merchants: Treatment of

Cleared Swaps Customer Collateral.

C. Regulation 22.3--Derivatives Clearing Organizations:

Treatment of Cleared Swaps Customer Collateral.

D. Regulation 22.4--Futures Commission Merchants and Derivatives

Clearing Organizations: Permitted Depositories.

E. Regulation 22.5--Futures Commission Merchants and Derivatives

Clearing Organizations: Written Acknowledgment.

F. Regulation 22.6--Futures Commission Merchants and Derivatives

Clearing Organizations: Naming of Cleared Swaps Customer Accounts.

G. Regulation 22.7--Permitted Depositories: Treatment of Cleared

Swaps Customer Collateral.

H. Regulation 22.8--Situs of Cleared Swaps Customer Accounts.

I. Regulation 22.9--Denomination of Cleared Swaps Customer

Collateral and Location of Depositories.

J. Regulation 22.10--Application of other Regulatory Provisions.

K. Regulation 22.11--Information to be Provided Regarding

Customers and Their Cleared Swaps.

L. Regulation 22.12--Information to be Maintained Regarding

Cleared Swaps Customer Collateral.

M. Regulation 22.13--Additions to Cleared Swaps Customer

Collateral.

N. Regulation 22.14--Futures Commission Merchant Failure to Meet

a Customer Margin Call in Full.

O. Regulation 22.15--Treatment of Cleared Swaps Customer

Collateral on an Individual Basis.

P. Regulation 22.16--Disclosures to Customers.

V. Section by Section Analysis: Amendments to Regulation Part 190

A. Background.

B. Definitions.

C. Amendments to Regulation 190.02--Operation of the Debtor's

Estate Subsequent to the Filing Date and Prior to the Primary

Liquidation Date.

D. Amendments to Regulation 190.03--Operation of the Debtor's

Estate Subsequent to the Primary Liquidation Date.

E. Amendments to Regulation 190.04--Operation of the Debtor's

Estate--General.

F. Amendments to Regulation 190.05--Making and Taking Delivery

on Commodity Contracts.

G. Amendments to Regulation 190.06--Transfers.

H. Amendments to Regulation 190.07--Calculation of Allowed Net

Equity.

I. Amendments to Regulation 190.09--Member Property.

J. Amendments to Regulation 190.10--General.

K. Amendments to Appendix A to Part 190--Bankruptcy Forms,

Bankruptcy.

L. Amendments to Appendix B to Part 190--Special Bankruptcy

Distributions.

VI. Effective Date

VII. Consideration of Costs and Benefits

A. Introduction.

B. Benefits and Costs of Complete Legal Segregation Model

Relative to Futures Model.

C. Conclusion.

VIII. Related Matters.

A. Paperwork Reduction Act.

B. Regulatory Flexibility Act.

IX. Text of Proposed Rules

I. Background

A. Segregation Requirements

On July 21, 2010, President Obama signed the Dodd-Frank Act.\1\

Title VII of the Dodd-Frank Act \2\ amended the CEA \3\ to establish a

comprehensive new regulatory framework for swaps and certain security-

based swaps. The legislation was enacted 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;

\4\ (2) imposing mandatory clearing and trade execution requirements on

clearable swap contracts; (3) creating rigorous recordkeeping and real-

time reporting regimes; and (4) enhancing the Commission's rulemaking

and enforcement authorities with respect to, among others, all

registered entities and intermediaries subject to the Commission's

oversight.

---------------------------------------------------------------------------

\1\ See Dodd-Frank Act, Public Law 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.

\2\ Pursuant to section 701 of the Dodd-Frank Act, Title VII may

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

2010.''

\3\ 7 U.S.C. 1 et seq.

\4\ In this release, the terms ``swap dealer'' and ``major swap

participant'' shall have the meanings set forth in section 721(a) of

the Dodd-Frank Act, which added sections 1a(49) and (33) of the CEA.

However, as directed by section 721(c) of the Dodd-Frank Act, the

Commission is in the process of promulgating rules to further

define, among other terms, ``swap dealer'' and ``major swap

participant.'' See 75 FR 80173, Dec. 21, 2010.

---------------------------------------------------------------------------

Section 724 of the Dodd-Frank Act prescribes the manner in which

Cleared

[[Page 6337]]

Swaps (and related collateral) \5\ must be treated prior to and after

bankruptcy. Section 724(a) of the Dodd-Frank Act amends section 4d of

the CEA to add a new paragraph (f), which imposes the following

requirements on an FCM, as well as any depository thereof (including,

without limitation, a DCO):

---------------------------------------------------------------------------

\5\ Regulation 22.1 defines ``Cleared Swap'' and ``Cleared Swaps

Customer Collateral.''

---------------------------------------------------------------------------

1. The FCM must treat and deal with all collateral (including

accruals thereon) deposited by a customer \6\ to margin its Cleared

Swaps as belonging to such customer;

---------------------------------------------------------------------------

\6\ Regulation 22.1 defines ``Cleared Swaps Customer.''

---------------------------------------------------------------------------

2. The FCM must separately account for and may not commingle such

collateral with its own property and may not, with certain exceptions,

use such collateral to margin the Cleared Swaps of any person other

than the customer depositing such collateral;

3. A DCO may not hold or dispose of the collateral that an FCM

receives from a customer to margin Cleared Swaps in any manner that

would indicate that such collateral belonged to the FCM or any person

other than the customer; and

4. The FCM and the DCO may only invest such collateral in

enumerated investments.

In other words, the FCM and the DCO (i) must hold such customer

collateral in an account (or location) that is separate from the

property belonging to the FCM or DCO, and (ii) must not use the

collateral of one customer to (A) cover the obligations of another

customer or (B) the obligations of the FCM or DCO. These basic

requirements that Cleared Swaps Customer Collateral be treated as the

property of customers and maintained in segregated accounts (or

locations) are imposed by the statute and have the force of law

regardless of the Commission's particular implementing regulations.

Moreover, by the terms of the statute, these requirements would apply

even if the Commission promulgated no implementing regulations.

Section 724(b) of the Dodd-Frank Act governs bankruptcy treatment

of Cleared Swaps by clarifying that Cleared Swaps are ``commodity

contracts'' within the meaning of section 761(4)(F) of the Bankruptcy

Code.\7\ Therefore, in the event of an FCM or DCO insolvency, Cleared

Swaps Customers may invoke the protections of Subchapter IV of Chapter

7 of the Bankruptcy Code (``Subchapter IV''). Such protections include:

(i) protected transfers of Cleared Swaps and related collateral; \8\

and (ii) if Cleared Swaps are subject to liquidation, preferential

distribution of remaining collateral.\9\ However, section 766(h) of the

Bankruptcy Code (``Section 766(h)'') subjects customers to mutualized

risk by requiring that customer property be distributed ``ratably to

customers on the basis and to the extent of such customers' allowed net

equity claims.'' This requirement, in turn, limits the Commission's

flexibility in designing a model for the protection of customer

collateral.

---------------------------------------------------------------------------

\7\ 11 U.S.C. 761(4)(F).

\8\ See, e.g., 11 U.S.C. 764.

\9\ See, e.g., 11 U.S.C. 766(h) and (i).

---------------------------------------------------------------------------

B. Overview of the Clearing Process as It Relates to the Segregation

Requirements

1. Central Counterparties/Derivatives Clearing Organizations

One of the primary objectives of the Dodd-Frank Act was to promote

the central clearing of swaps and to establish the regulatory

infrastructure for the clearing of swaps.\10\ Clearing is the process

by which transactions in derivatives are processed, guaranteed, and

settled by a central counterparty, also known as a DCO. In accordance

with this overall Congressional purpose, section 724 of the Dodd-Frank

Act amends the CEA to provide the statutory foundation for the

protection of Cleared Swaps Customer Collateral.

---------------------------------------------------------------------------

\10\ See supra n. 1; S. Rep. No. 111-176, at 33 (2010) (``[w]ith

appropriate collateral and margin requirements, a central clearing

organization can substantially reduce counterparty risk and provide

an organized mechanism for clearing transactions''); Process for

Review of Swaps for Mandatory Clearing, 76 FR 44464, July 26, 2011

(final rule); Derivatives Clearing Organizations General Provisions

and Core Principles, 76 FR 69334, Nov. 8, 2011 (final rule).

---------------------------------------------------------------------------

A DCO has members (``Clearing Members'') who clear derivatives

transactions (e.g., swaps) through the DCO and who are subject to the

DCO's rules. Clearing Members may clear transactions on their own

behalf (i.e., ``proprietary transactions'') or on behalf of customers

(i.e., ``customer transactions''). Clearing members that clear swaps

for customers must be registered as futures commission merchants

(``FCMs'').\11\

---------------------------------------------------------------------------

\11\ Section 4d(f)(1) of the CEA, 7 U.S.C. 6d(f)(1).

---------------------------------------------------------------------------

The term ``central counterparty'' means, conceptually, that the DCO

becomes the seller to every buyer, and the buyer to every seller. More

specifically, the DCO novates swap transactions initially entered into

between various market participants, such as swaps users, dealers, or

end users, and cleared either directly (if the market participant is

itself a Clearing Member) or indirectly (through an FCM that is a

Clearing Member) . The contractual obligations between the original

parties (``A'' and ``B'') \12\ are replaced by sets of equivalent

obligations: between the Clearing Member FCMs acting for the original

parties and the DCO and between the Clearing Member FCMs and their

individual customers. Thus, if the original swap agreement would

require a certain payment from A to B, as a result of the clearing

process this obligation becomes (1) a duty by A's clearing FCM to pay

the DCO, (2) a corresponding claim by A's FCM to recompense from A, (3)

a duty by the DCO to pay B's clearing FCM, and (4) a corresponding duty

by B's FCM to pay B.

---------------------------------------------------------------------------

\12\ For purposes of this example, neither A nor B is a Clearing

Member.

---------------------------------------------------------------------------

In economic effect, the DCO serves as a guarantor that every

Clearing Member party to a cleared swap receives performance according

to the terms of the swap, while the clearing FCM serves as a guarantor

of its customers' swaps obligations to the DCO.

2. Variation

To avoid the accumulation of large obligations, the DCO conducts a

variation payment and collection cycle at least once a day, and in the

case of many DCOs, twice a day. The DCO will first calculate the gain

(and corresponding loss) on each contract through a process known as

``marking to market,'' using reported market prices where available, or

other means (such as surveys of Clearing Members). The DCO will then

aggregate and net the gains and losses for each Clearing Member

(separately for proprietary and customer accounts), collect from those

Clearing Members with net losses, and pay those Clearing Members with

net gains. This process is highly time sensitive: The Clearing Member

typically has only one or a few hours between the demand for payment

and the time payment is due. Similarly, the Clearing Member FCMs will

debit the accounts of those customers who have losses on their

transactions, and credit the accounts of those customers who have

gained.

3. Margin (Collateral)

To secure the prompt payment of variation obligations, the DCO will

require each Clearing Member to post collateral (often referred to as

``margin'') for the transactions it clears (separately for customer

positions and proprietary positions). If the Clearing Member does not

promptly make a variation payment to the DCO--referred to as a

default--the collateral may immediately be liquidated and applied to

the obligation. Margin may only be used to meet the

[[Page 6338]]

default of the Clearing Member posting that margin. While proprietary

margin may be used to meet obligations in either the Clearing Member's

proprietary account or customer account, the reverse is not true: A

Clearing Member's customer margin may not be used to meet a default in

the Clearing Member's proprietary account.

Similarly, FCMs will--indeed, are required to--collect collateral

from each of their customers, based on each customer's portfolio of

positions, to secure the prompt payment of the customer's variation

obligations.\13\ If a customer fails to fulfill an obligation to the

FCM arising out of a swap agreement the FCM clears for the customer,

the FCM may use some or all of the value of the collateral that

customer has posted to meet that obligation--that is the purpose of the

collateral.

---------------------------------------------------------------------------

\13\ See regulation 39.13(g)(8)(ii) (stating that ``[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 nonhedge positions, at a level

that is greater than 100 percent of the derivatives clearing

organization's initial margin requirements with respect to each

product and swap portfolio.''). 76 FR at 69439.

The purpose of this rulemaking is to protect Cleared Swaps

Customer Collateral in the event that an FCM defaults to a DCO due

to ``Fellow-Customer Risk'' (as such term is defined in section

I(B)(6) herein). However, as section III(B) explores in greater

detail, the segregation model selected in this rulemaking provides

limited protection from operational and investment risks.

---------------------------------------------------------------------------

The DCO will generally set minimum collateral levels for each type

of swap, and will prescribe a ``margin methodology'' to determine the

minimum margin level for portfolios of swaps. The DCO's margin

methodology will be designed to estimate the amount of loss a portfolio

of swap positions may incur, calculated at a statistical confidence

level no less than 99%, over a holding period generally between one and

ten days, depending on the time it is estimated to take to liquidate

the swaps in the portfolio.\14\ The FCM will, in turn, use the same or

similar methodology in determining the minimum level of collateral it

must collect from each customer.\15\

---------------------------------------------------------------------------

\14\ See generally, 76 FR 69334. See specifically regulation

39.13(g)(2)(ii) (setting forth a one-day minimum liquidation time

for agricultural, energy, and metals swaps, and a five-day minimum

liquidation time for all other swaps). 76 FR 69438.

\15\ The FCM is required to collect a higher level of collateral

from its customers than that prescribed for Clearing Members (see

id.) and may, in its discretion, collect a yet higher level. See

regulation 22.13(a)(1).

---------------------------------------------------------------------------

4. Default Resources

As noted above, the margin collateral collected by a DCO is

designed to cover most (e.g., 99%), but not all, potential losses

incurred by a Clearing Member. DCOs cover the ``tail risk'' (i.e., the

risk that a Clearing Member will incur, and default on, a loss in

excess of the margin collected) by means of what is sometimes referred

to as a default resources package, or ``waterfall.'' Elements of the

waterfall may include a contribution of a specified amount of the DCO's

own capital, pre-funded contributions from Clearing Members (a

``guaranty fund''),\16\ or (to a limited extent), a power by the DCO to

assess additional contributions from Clearing Members. Unlike margin, a

Clearing Member's contribution to the guaranty fund will generally be

usable to meet the default of another Clearing Member. In other words,

the guaranty fund is ``mutualized.'' Elements of the waterfall are

applied in an order pre-determined by the DCO's rules. Such rules will

often apply the guaranty fund contribution of the defaulter before the

DCO's own capital, and the remainder of the guaranty fund (i.e., the

guaranty fund contributions of the non-defaulting Clearing Members)

thereafter.

---------------------------------------------------------------------------

\16\ See also infra at n. 250.

---------------------------------------------------------------------------

Though seemingly complex, centralized clearing has important

advantages in terms of transparency, risk management, netting out of

countervailing obligations, and reduced exposure of market participants

to each other's credit risk (by effectively substituting the DCO's

credit risk).

5. Customer Accounts

Generally, a clearing FCM will have two different types of Cleared

Swaps Customer Accounts in connection with collateral provided to it by

Cleared Swaps Customers. One account is maintained (generally at a

bank) by the FCM on behalf of its Cleared Swaps Customers (the ``FCM

Customer Account''). The FCM Customer Account holds assets provided by

customers, or other assets of equivalent value, that are not currently

posted with the DCO to support swaps positions cleared by the FCM on

behalf of its Cleared Swaps Customers. The other account is maintained

by the DCO for the FCM on behalf of the FCM's Cleared Swaps Customers

(the ``DCO Customer Account''). The DCO Customer Account holds customer

assets, or assets of equivalent value, that the FCM has posted to the

DCO as collateral for swaps positions that have been established and

cleared by the FCM for its Cleared Swaps Customers.

The collateral posted by each Cleared Swaps Customer is, however,

potentially exposed to risks that do not arise out of the obligations

that a Cleared Swaps Customer has directly incurred by assuming his or

her swaps position. \17\ The most important impact of such risks would

occur in the case of an insolvency on the part of the FCM through which

the Cleared Swaps Customer clears. As discussed in more detail below,

the new CEA section 4d(f), and the Commission's implementing

regulations, are designed to provide protection for Cleared Swaps

Customer Collateral against certain risks that may arise during an

insolvency on the part of the FCM through which the Cleared Swaps

Customer clears.

---------------------------------------------------------------------------

\17\ Examples of other risks include the possibility of misuse

or misallocation of a Cleared Swaps Customer's assets by a dishonest

or negligent FCM.

---------------------------------------------------------------------------

6. Fellow-Customer Risk

``Fellow-Customer Risk'' is the risk that a DCO would need to

access the collateral of non-defaulting Cleared Swaps Customers to cure

an FCM default. Fellow-Customer Risk arises in circumstances in which a

Cleared Swaps Customer (the ``defaulting customer'') of a clearing FCM

suffers a (significant) loss in connection with a cleared swap.\18\ The

loss will result in a call by the DCO for a variation payment from the

clearing FCM that carries that Cleared Swaps Customer's Cleared

Swaps.\19\ The clearing FCM may demand expedited payment from the

defaulting Cleared Swaps Customer, but is in any event directly

obligated promptly to meet the payment obligation to the DCO.

---------------------------------------------------------------------------

\18\ See also supra n. 13.

\19\ As noted above, the amount the DCO will call for or pay to

the FCM in respect of its Cleared Swaps Customers is the net of the

gains and losses computed on a customer-by-customer basis.

---------------------------------------------------------------------------

If the loss is great enough, it may exceed the sum of the FCM's

available liquid assets, the swaps collateral posted by the Cleared

Swaps Customer, and any additional payments immediately available from

the Cleared Swaps Customer. In this situation, sometimes called a

``double default,'' the defaulting Cleared Swaps Customer will have

defaulted on its obligation to the clearing FCM which, in turn, will

default on its obligation to the DCO. In such circumstances, the FCM

will likely have to file for protection in bankruptcy. Meanwhile, the

defaulting Cleared Swaps Customer's loss will translate to a gain by

one or more other market participants. Notwithstanding the default by

the clearing FCM, the DCO, in its capacity as central counterparty, is

required to pay out these gains. The DCO will thus be faced with a

potentially significant loss.

A potential resource for the DCO to apply to this loss in a double

default

[[Page 6339]]

situation is the collateral held in the Cleared Swaps Customer Account

maintained by the DCO for the defaulting FCM on behalf of the FCM's

Cleared Swaps Customers. Under the current rules applicable to futures

clearing, a DCO is permitted to use all of the collateral in the

Clearing Member's customer account to meet a loss in that account,

without regard to which customer(s) in fact supplied that collateral.

Thus, in this case, the non-defaulting customers of the defaulting FCM

clearing member would be exposed to loss due to ``Fellow-Customer

Risk.''

C. Segregation Alternatives

In implementing new CEA section 4d(f), the Commission considered

five alternative segregation models for Cleared Swaps Customer

Collateral in the notice of proposed rulemaking issue by the Commission

on June 9, 2011 (the ``NPRM'').\20\

---------------------------------------------------------------------------

\20\ See Notice of Proposed Rulemaking on the Protection of

Cleared Swaps Customer Contracts and Collateral; Conforming

Amendments to the Commodity Broker Bankruptcy Provisions, 76 FR

33818, 33822, June 9, 2011.

---------------------------------------------------------------------------

1. Legal Segregation With Operational Commingling Model

The first alternative explored by the Commission was legal

segregation with operational commingling (the ``LSOC Model'' or

``Complete Legal Segregation Model''). Under the LSOC Model, each FCM

and DCO would enter (or ``segregate''), in its books and records, the

Cleared Swaps of each individual customer and relevant collateral. Each

FCM and DCO would ensure that such entries are separate from entries

indicating (i) FCM or DCO obligations, or (ii) the obligations of non-

cleared swaps customers. Operationally, however, each FCM and DCO would

be permitted to hold (or ``commingle'') the relevant collateral in one

account. Each FCM and DCO would ensure that such account is separate

from any account holding FCM or DCO property or holding property

belonging to non-cleared swaps customers.

Prior to the simultaneous default of an FCM and one of its Cleared

Swaps Customers (as discussed above, a ``double default''), the FCM

would ensure that the DCO does not use the collateral of one Cleared

Swaps Customer to support the obligations of another customer by making

certain that the value of the Cleared Swaps Customer Collateral that

the DCO holds equals or exceeds the value of all Cleared Swaps Customer

Collateral that it has received to secure the contracts of the FCM's

customers. Following a double default, the DCO would be permitted to

access the collateral of the defaulting Cleared Swaps Customers, but

not the collateral of the non-defaulting Cleared Swaps Customers. Thus

while, even under the LSOC Model, Section 766(h) requires the pro rata

distribution of customer property, the collateral attributable to the

non-defaulting Cleared Swaps Customers would be available to be

distributed.

2. Legal Segregation With Recourse Model

Second, the Commission contemplated the Legal Segregation with

Recourse Model (together with the LSOC Model, the ``Legal Segregation

Models''). As with the LSOC Model, under the Legal Segregation with

Recourse Model, each FCM and DCO would segregate the Cleared Swaps of

each individual customer and relevant collateral in its books and

records. However, each FCM and DCO would be permitted to commingle the

relevant collateral in one account, provided that such account is

separate from any proprietary accounts or accounts property belonging

to non-cleared swaps customers.

Again, as with the LSOC Model, prior to a double default, the FCM

would ensure that the DCO does not use the collateral of one Cleared

Swaps Customer to support the obligations of another customer by making

certain that the value of the Cleared Swaps Collateral that the DCO

holds equals or exceeds the value of all Cleared Swaps Collateral that

it has received to secure the contracts of the FCM's customers.

However, unlike the LSOC Model, following a double default, the Legal

Segregation with Recourse Model would not prohibit a DCO from accessing

the collateral of the non-defaulting Cleared Swaps Customers, after the

DCO applies its own capital to cure the default, as well as the

guaranty fund contributions of its non-defaulting FCM members.

3. Physical Segregation Model

The Commission also explored the possibility of full physical

segregation (the ``Physical Segregation Model'') for Cleared Swaps

Customer Collateral. The Physical Segregation Model primarily differs

from the Legal Segregation Models operationally. In the ordinary course

of business (i.e., prior to a double default), as with the Legal

Segregation Models, each FCM and DCO would enter (or ``segregate''), in

its books and records, the Cleared Swaps of each individual customer

and relevant collateral. However, unlike the Legal Segregation Models,

each FCM and DCO would maintain separate individual accounts for the

relevant collateral. Hence, the FCM would ensure that the DCO does not

use the collateral of one Cleared Swaps Customer to support the

obligations of another customer by making certain that the DCO does not

mistakenly transfer collateral in (i) the account belonging to the

former to (ii) the account belonging to the latter.

Following a double default, the Physical Segregation Model would

lead to the same result as the Complete Legal Segregation Model.

Specifically, the DCO would be permitted to access the collateral of

the defaulting Cleared Swaps Customers, but not the collateral of the

non-defaulting customers.

As discussed above, one important limitation on the effectiveness

of the Physical Segregation Model is section 766(h) of the Bankruptcy

Code, which requires that customer property be distributed ratably.

Thus, if because of Physical Segregation, certain Cleared Swaps

Customer Collateral was better protected than the property of other

Cleared Swaps Customers, it would not be permissible to pay Cleared

Swaps Customers in the first group a higher proportion (i.e., a higher

cents-on-the-dollar distribution) of their net equity claims than

Cleared Swaps Customers in the second group. Rather, Cleared Swaps

Customers in both groups would receive the same proportion of their

allowed net equity claims. In other words, in spite of incurring

greater cost under the Physical Segregation Model, a Cleared Swaps

Customer would essentially receive the same level of protection for its

Cleared Swaps Customer Collateral under the Physical Segregation Model

as it would under the LSOC Model.

4. Futures Model

The Commission also considered replicating the segregation

requirement currently applicable to futures (the ``Futures Model'').

Under this model, DCOs treat each FCM's customer account on an omnibus

basis, that is, as belonging to an undifferentiated group of customers.

Prior to a double default, the Futures Model shares certain

similarities with the Legal Segregation Models. Specifically, each FCM

would enter (or ``segregate''), in its books and records, the Cleared

Swaps of each individual customer and relevant collateral. Each DCO,

however, would recognize, in its books and records, the Cleared Swaps

that an FCM intermediates on a collective (or ``omnibus'') basis. Each

FCM and DCO would be permitted to hold (or ``commingle'') all Cleared

Swaps Customer Collateral in one account.

[[Page 6340]]

Following a double default, the Futures Model shares certain

similarities with the Legal Segregation with Recourse Model.

Specifically, the Futures Model would not prohibit a DCO from accessing

the collateral of the non-defaulting Cleared Swaps Customers. However,

unlike the Legal Segregation with Recourse Model, under the Futures

Model the DCO would be permitted to access such collateral before

applying its own capital or the guaranty fund contributions of non-

defaulting FCM members.\21\

---------------------------------------------------------------------------

\21\ For a more detailed discussion regarding the operation of

the segregation models in an FCM bankruptcy, see section I.D.

---------------------------------------------------------------------------

5. Optionality

Finally, the Commission explored permitting a DCO to choose between

(i) the Legal Segregation Models (whether Complete or with Recourse),

(ii) the Physical Segregation Model, and (iii) the Futures Model,

rather than mandating any particular alternative.

D. Operation of the Segregation Models in an FCM Bankruptcy

When discussing the issues surrounding an FCM bankruptcy under the

Bankruptcy Code, analytically there are several scenarios to consider:

(1) The bankruptcy is unrelated to the loss of customer funds, and

there is no such loss; (2) The bankruptcy involves shortfalls in

customer funds due to operational risks; (3) The bankruptcy involves

losses due to customer risk (i.e., a customer incurs a loss in excess

of the FCM's financial ability to cover); or (4) the bankruptcy

involves shortfalls in customer funds due to operational risk and

losses due to customer risk.

1. Bankruptcy Unrelated to Loss of Customer Funds

An FCM bankruptcy that is unrelated to the loss of customer funds

may arise because of financial difficulties in the FCM, financial

difficulties in the proprietary accounts, or because of the impact of

difficulties at a corporate parent or affiliate. Under this scenario,

all models share important characteristics: Customer positions and

related collateral, whether at a DCO or at the FCM, can be transferred

to one or more willing transferee FCMs, or may be liquidated and

returned to the trustee. With respect to fostering transfer, however,

the Legal Segregation Models (whether Complete or with Recourse) and

the Physical Segregation Model do have a significant advantage compared

to the Futures Model: In each of them, information about the customers

as a whole, and about each individual customer's positions, are

transmitted to the DCO every day, an information flow (and store) that

is not present in the Futures Model. Thus, each DCO will have important

customer information on a customer by customer basis that can be used

to facilitate and implement transfers, and is thus less reliant upon

the FCM for that information.

2. Bankruptcy With Shortfalls Due to Operational Risks or Investment

Risks

An FCM bankruptcy with shortfalls due to operational risks would

arise because of a shortfall in segregated funds due to, e.g.,

negligence, theft or other mishap. An FCM may also have shortfalls due

to investment risks resulting from extraordinary losses on the set of

investments permitted under regulation 1.25 (as included in new

regulation 22.2(e)(3)). Under this scenario, all models again share

important characteristics: Customer positions and related collateral at

a DCO may be delivered to the Trustee, or may transferred by the DCO,

but only to the extent of each customer's pro rata share. Under all of

the segregation models, to the extent there is a shortfall, each

customer will ultimately receive the same cents-on-the-dollar

proportion of the value of the customer's account.

However, with respect to fostering transfer, the other models again

have a significant advantage compared to the Futures Model: In each of

them, information about the customers as a whole, and about each

individual customer's positions, are transmitted to the DCO every day,

an information flow (and store) that is not present in the Futures

Model. Thus, each DCO will have important customer information on a

customer by customer basis that can be used to facilitate and implement

transfers, and accordingly is less reliant upon the FCM for that

information.

3. Bankruptcy With Shortfalls Due to Customer Risk

An FCM bankruptcy with shortfalls due to customer risk would arise

because a customer incurs a loss that exceeds both the customer's

collateral and the FCM's ability to pay.

Under the Futures Model, the DCO could use the entirety of the

FCM's customer account (or as much of it as necessary) to meet the

entire loss created by the default. Transfer of customer positions

would be difficult, in that the DCO would lack information as to which

customers were in default, and which positions belonged to defaulting

customers (and, presumably, would not be transferred) and which did

not.\22\ The DCO would be permitted to liquidate customer positions, a

process that might take between one and ten days.\23\ Once the loss was

crystalized, the DCO would be able to turn over the collateral (less

that used to meet the default) to the Trustee for use in the pro rata

distribution.

---------------------------------------------------------------------------

\22\ See generally, CME Group, Inc. (``CME'') at 14-15

(discussing information deficits at bankrupt FCM).

\23\ See 76 FR at 69366-68.

---------------------------------------------------------------------------

Under the LSOC Model, the DCO could only use the collateral

attributable to defaulting customers (those whose positions suffered

losses) to meet the loss. Thus, all collateral attributable to

customers whose net positions gained or were ``flat'' (neither gained

nor lost), and much of the collateral attributable to customers whose

net positions lost, would be immediately available for transfer.

Moreover, the DCO would have information that is no more than one

business day old tying customers to portfolios of positions, and the

DCO itself would maintain the margining methodology that would tie such

portfolios of positions to the collateral requirement associated with

such portfolios. Even if the DCO decided to liquidate all customer

positions, the collateral of non-defaulting customers would be exposed

to less loss than under the Futures Model because the DCO would not

have the right to access it.

The Physical Segregation Model would work in a manner similar to

the LSOC Model. Again, all collateral attributable to customers whose

net positions gained or were ``flat'' (neither gained nor lost), and

the remaining collateral attributable to customers whose net positions

lost, would be immediately available for transfer. The DCO would have

specific information on how much collateral was, in fact, attributable

to each customer. However, because of the ratable distribution

requirement, any losses that did exist would be shared ratably among

all customers.

Under the Legal Segregation with Recourse, the DCO could only use

the collateral attributable to defaulting customers (those whose

positions suffered losses) to meet the loss--at first. It would also

use the defaulting clearing member FCM's own contribution to the

guaranty fund, its own contribution to the guaranty fund, as well as

the contributions of non-defaulting clearing members. However, if those

resources were insufficient to cover the default, the DCO would have

``recourse'' to the collateral of non-defaulting customers. While such

[[Page 6341]]

recourse is much less likely under the Legal Segregation with Recourse

Model than under the Futures Model--because the fellow-customer

collateral would not be reached unless the loss was great enough to

consume the entire guaranty fund--until the amount of loss from the

default was crystalized (through liquidation or transfer), the DCO

might be reluctant or unable to release the collateral of non-

defaulting customers. Accordingly, while Legal Segregation with

Recourse would (in most cases) provide customers superior recovery in a

liquidation, it would be much less well-suited to a prompt transfer of

positions.

E. Solicitation of Public Input

The Commission sought public comment on the segregation

alternatives mentioned above, and on the advisability of permitting the

DCO to choose between alternatives. First, the Commission, through its

staff, held extensive external meetings with three segments of

stakeholders (i.e., DCOs, FCMs, and swaps customers).\24\ Second, on

October 22, 2010, the Commission, through its staff, held a roundtable

(the ``First Roundtable'').\25\ Third, on November 19, 2010, the

Commission issued an Advance Notice of Proposed Rulemaking for

Protection of Cleared Swaps Customers Before and After Commodity Broker

Bankruptcies (the ``ANPR''). Fourth, on June 3, 2011, the Commission,

through its staff, held a second roundtable (the ``Second

Roundtable'').\26\ Fifth, after careful consideration of the comments

the Commission received on the ANPR, the Commission issued the NPRM.

---------------------------------------------------------------------------

\24\ A list of external meetings is available at: http://www.cftc.gov/LawRegulation/DoddFrankAct/Rulemakings/DF_6_SegBankruptcy/index.htm.

\25\ The transcript from the First Roundtable (the ``First

Roundtable Tr.'') is available at: http://www.cftc.gov/idc/groups/public/@swaps/documents/dfsubmission/dfsubmission6_102210-transcrip.pdf.

\26\ The transcript from the Second Roundtable (the ``Second

Roundtable Tr.'') is available at: http://www.cftc.gov/idc/groups/public/@swaps/documents/dfsubmission/dfsubmission6_060311-transcri.pdf.

---------------------------------------------------------------------------

1. First Roundtable

As the ANPR describes, the First Roundtable revealed that

stakeholders had countervailing concerns regarding the alternative

segregation models that the Commission set forth. On the one hand, a

number of swaps customers argued that the Commission should focus on

effectively eliminating Fellow-Customer Risk \27\ and Investment

Risk.\28\ Such swaps customers emphasized that (i) They currently

transact in uncleared swaps, (ii) they are able to negotiate for

individual segregation at independent third parties for collateral

supporting such uncleared swaps, and therefore (iii) they are currently

subject to neither Fellow-Customer Risk nor Investment Risk. Such

customers found it inappropriate that, under certain alternatives set

forth by the Commission, they should be subject to Fellow-Customer Risk

and Investment Risk when they transact in Cleared Swaps.

---------------------------------------------------------------------------

\27\ As noted in section I.B.1, an FCM functions as a guarantor

of customer transactions with a DCO. Section 4d(f) of the CEA

prohibits an FCM from using the collateral deposited by one Cleared

Swaps Customer to support the swap transactions of another Cleared

Swaps Customer. Therefore, if one Cleared Swaps Customer owes money

to the FCM (i.e., the Cleared Swaps Customer has a debit balance),

the FCM, acting as guarantor, must deposit its own capital with the

DCO to settle obligations attributable to such customer. If the

Cleared Swaps Customer defaults to the FCM, and the Cleared Swaps

Customer's obligations are so significant that the FCM does not have

sufficient capital to meet them, then the FCM would default to the

DCO.

As discussed in Section I.B.4, the financial resources DCOs

maintain to cover Clearing Member defaults with respect to customer

positions in excess of collateral provided by the Clearing Member

include property of the defaulting Clearing Member (i.e., collateral

deposited to support FCM proprietary transactions and contributions

to the DCO guaranty fund). Other elements of such packages may

include: (i) The collateral that the FCM deposited to support the

transactions of non-defaulting customers; (ii) a portion of the

capital of the DCO; and (iii) contributions to the guaranty fund

from other DCO Clearing Members. Typically, a DCO would exhaust one

element before moving onto the next element. Therefore, the risk

that the DCO would use any one element depends on the position of

that element in the package.

\28\ ``Investment Risk'' is the risk that each Cleared Swaps

Customer would share pro rata in any decline in the value of FCM or

DCO investments of Cleared Swaps Customer Collateral. Section 4d(f)

of the CEA permits an FCM to invest Cleared Swaps Customer

Collateral in certain enumerated instruments. The Commission is

proposing to expand such instruments to include those referenced in

regulation 1.25 (as it may be amended from time to time). Even

though (i) such investments are ``consistent with the objectives of

preserving principal and maintaining liquidity,'' and (ii) both the

FCM, as well as the DCO, value such investments conservatively (by,

e.g., applying haircuts), the value of such investments may decline

to less than the value of the collateral originally deposited. See

regulation 1.25(b) (as amended in Investment of Customer Funds and

Funds Held in an Account for Foreign Futures and Foreign Options

Transactions, 76 FR 78776, December 19, 2011). In such a situation,

all customers would share in the decline pro rata, even if the

invested collateral belonged to certain customers and not others.

---------------------------------------------------------------------------

On the other hand, a number of FCMs and DCOs argued that the

benefits of effectively eliminating Fellow-Customer Risk and Investment

Risk are outweighed by the costs. With respect to benefits, these FCMs

and DCOs noted that the Futures Model has served the futures industry

well for many decades. With respect to costs, these FCMs and DCOs

described two potential sources. First, FCMs and DCOs stated that,

depending on the manner in which the Commission proposes to eliminate

or mitigate Fellow-Customer Risk and Investment Risk, they may

experience substantial increases to operational costs (e.g., costs

associated with transaction fees, reconciliations, recordkeeping,

reporting). Second, and more significantly, FCMs and DCOs stated that

they may incur additional risk costs due to proposed financial

resources requirements.\29\

---------------------------------------------------------------------------

\29\ As described below, the term ``Risks Costs'' refers to the

costs associated with the allocation of loss in the event of a

default under the Complete Legal Segregation Model relative to the

Futures Model. For a more detailed explanation of these costs, see

the discussion in section VII.B.2.b., under the heading titled

```Risk Costs' and potential effects on margin levels and DCO

guaranty fund levels in response to complete legal segregation.''

---------------------------------------------------------------------------

In addition, some DCOs may have anticipated including collateral

from non-defaulting Cleared Swaps Customers as an element in their

financial resources packages. If DCOs no longer have access to such

collateral, then those DCOs would need to obtain additional financial

resources to meet proposed Commission requirements. Both FCMs and DCOs

averred that the costs associated with obtaining such additional

financial resources may be substantial, and would ultimately be borne

by Cleared Swaps Customers.\30\

---------------------------------------------------------------------------

\30\ 75 FR at 75163. For example, one DCO estimated that it

would have to increase the amount of collateral that each Cleared

Swaps Customer must provide by 60 percent, if it could no longer

access the collateral of non-defaulting Cleared Swaps Customers to

cure certain defaults. See infra n. 258.

---------------------------------------------------------------------------

2. ANPR

Given the concerns that stakeholders expressed at the First

Roundtable, the Commission decided to seek further comment through the

ANPR on the potential benefits and costs of (i) The Legal Segregation

Models (whether Complete or with Recourse), (ii) the Physical

Segregation Model, and (iii) the Futures Model. As the ANPR explicitly

stated, ``[t]he Commission [was] seeking to achieve two basic goals:

Protection of customers and their collateral, and minimization of costs

imposed on customers and on the industry as a whole.'' \31\ In

addition, the Commission requested comment on the impact of each model

on behavior, as well as whether Congress evinced intent for the

Commission to adopt any one or more of these models.

---------------------------------------------------------------------------

\31\ Id.

---------------------------------------------------------------------------

[[Page 6342]]

As described in the NPRM, the Commission received thirty-one

comments from twenty-nine commenters.\32\ The comments were generally

divided by the nature of the commenter: Most (though not all) of the

comments from current or potential Cleared Swaps Customers favored

either the Legal Segregation Models (whether Complete or with Recourse)

or the Physical Segregation Model, manifesting a willingness to bear

the added costs.\33\ Most of the FCMs and DCOs favored the Futures

Model, though one commenter favored the Complete Legal Segregation

Model.\34\ Finally, another commenter, in its supplemental comment,

opined that the most important factor that the Commission should

consider is the extent to which a model fostered the portability \35\

of Cleared Swaps belonging to non-defaulting customers.\36\ This

commenter noted that the Physical Segregation Model and what is now

referred to as the Complete Legal Segregation Model were most conducive

to that goal.\37\

---------------------------------------------------------------------------

\32\ All comment letters are available through the Commission's

Web site at: http://www.cftc.gov/LawRegulation/FederalRegister/ProposedRules/2010-29836.

\33\ See id.

\34\ See id.

\35\ The terms ``portability,'' ``port,'' and ``porting'' refer

to the ability to reliably transfer the swaps (and related

collateral) of a non-defaulting customer from an insolvent FCM to a

solvent FCM, without the necessity of liquidating and re-

establishing the swaps.

\36\ See ISDA comment letters on ANPR.

\37\ See id.

---------------------------------------------------------------------------

After careful consideration of the First Roundtable discussion and

the comments received in response to the ANPR, the Commission issued

the NPRM on June 9, 2011.

3. Second Roundtable

Discussions during the Second Roundtable generally reflected the

conflicting concerns expressed by market participants regarding the

alternative segregation models set forth by the Commission. Swaps

customers continued to state that the Commission should focus on

mitigating Fellow-Customer Risk, with some also advocating for the

elimination of Investment Risk, while FCMs and DCOs reiterated that the

Commission should select the Futures Model as the segregation model for

Cleared Swaps Customer Collateral because the Futures Model has served

the futures industry well for many decades. Pension funds, and a few

investment managers, remained concerned about their potential exposure

to Fellow-Customer Risk and Investment Risk and continued to press the

Commission to adopt the Physical Segregation Model either outright or

on an optional basis.

In addition, participants discussed various cost and benefits

issues arising in relation to the Futures and the Legal Segregation

Models. Specifically, several participants believed that the

operational costs would not be significantly different between the

Futures Model and the Complete Legal Segregation Model.\38\ Moreover,

although some participants projected that risk costs would

significantly increase if the Commission were to select the Complete

Legal Segregation Model,\39\ one participant argued that these risk

costs would not be incremental risk costs; rather they are risk costs

that exist in the Futures Model that would most likely ultimately be

borne by customers.\40\ Finally, one participant argued that any model

that facilitates the ability to port ``is superior to one that

doesn't'' because ``the closeout cost in the future's model was the

most expensive,'' meaning that ``closing out a client account and rates

could be extremely devastating to the market, and * * * be really

significant losses * * * [and] any way [the losses] can be avoided

would be beneficial to every participant in the market.'' \41\

---------------------------------------------------------------------------

\38\ See Second Roundtable Tr. at 250, l.2 (In response to

whether the Complete Legal Segregation Model would impose

operational costs over the Futures Model, Ms. Bregasi stated that

``[t]here is no additional cost between LSOC and the futures

model;'' Mr. Prager stated that ``[w]e don't see them incurring

other than the start-up costs, the one time that everyone will have

to incur to set up, the running cost. We don't see any incremental

cost;'' and Mr. MacFarlane stated that ``I would agree there are no

additional operational costs.''). See also, Second Roundtable Tr. at

239, l.8 (Mr. Frankel explaining that operational costs resulting

from passing ``the client identity and * * * some other multiplier

that explains how much excess there is in the seg account for the

client * * * [is] a small build.''); Second Roundtable Tr. at 243,

l.22 (Mr. Kahn stating that ``in terms of the cost, the fact is OTC

is a little different than futures because there is a tremendous

build that everyone is doing in the case of OTC so if we need to

build LSOC which in essence we've done in the LCH European model,

there is a cost of that but I can't really define what it is. It's

relatively small and not material.'').

\39\ See Second Roundtable Tr. at 255, l.12 (Mr. Frankel arguing

that ``Moving to a 99.9 percent confidence of coverage we think will

increase margins by about 60 percent [for rates] * * * I think for

CDS it could be more than double.''). See also Second Roundtable Tr.

at 262, l.2 (Mr. Diplas arguing that ``not having the additional

pool of funds that are associated with the fellow customers means

that we definitely need to actually margin from a CCP perspective,

the higher confidence interval. That will differ depending on the

asset class we're looking at. Some of them, at least based on the

existing pool of trades, it could be manageable like at 60, 70

percent in rates. We'll talk about three to four times the amount

that--in credit--and the more we get to instruments with fatter

tails the higher the number is going to be. I think that is

something that clients need to be cognizant of.'').

\40\ See, e.g., Second Roundtable Tr. at 257, l.6 (Mr.

MacFarlane stating that ``what's being said, if our transactions had

to be margined on an individual basis it would require that we put

up 60 to 70 percent more, which says that then the real risk of that

transaction is 75 percent more than what we're collateralizing. So

in the event of a default, not by us but by another counterparty

potentially, they will be under-collateralized relative to what

their individual transaction would require, and then that

potentially could work its way back to us.'').

\41\ See, e.g., Second Roundtable Tr. at 259, l.6 (quoting Mr.

Frankel). For a more detailed discussion of cost and benefit

considerations, please see discussion below in section VII.

---------------------------------------------------------------------------

4. NPRM

After carefully considering all comments to the ANPR and statements

made during the First Roundtable discussion, the Commission proposed in

the NPRM the Complete Legal Segregation Model as the segregation model

for Cleared Swaps Collateral because the Complete Legal Segregation

Model provided the best balance between benefits and costs in order to

protect market participants and the public. Nonetheless, due in part to

the strong opposing views expressed by market participants, the NPRM

made clear that the Commission was still considering whether to adopt,

in the alternative, the Legal Segregation with Recourse Model, and was

continuing to assess the feasibility of an optional approach and the

Futures Model.

Commenters to the ANPR generally observed that customers ultimately

would bear the costs of implementing whatever segregation model was

selected by the Commission. Nonetheless, most (though not all) of the

buy-side commenters favored individual protection for Cleared Swaps

Customer Collateral. These commenters generally viewed the Complete

Legal Segregation Model as the minimum level of protection necessary

for Cleared Swaps Customer Collateral. Because it was largely

recognized that customers would ultimately bear the costs of

implementing the selected segregation model, the Commission believed it

appropriate to give weight to the views of market participants who

would bear those costs, and found it compelling that most buy-side

commenters favored adoption of either the LSOC Model or the Physical

Segregation Model. The Commission noted that the Legal Segregation

Models and the Physical Segregation Model would provide greater

individualized protection to Cleared Swaps Customer Collateral than the

Futures Model, and was in accordance with section 4d(f) of the CEA. In

addition, the Commission noted that the LSOC Model and the Physical

Segregation Model may provide substantial benefits in the form of (i)

[[Page 6343]]

Decreased Fellow-Customer Risk, (ii) increased likelihood of

portability, (iii) decreased systemic risk, and (iv) positive impact on

portfolio margining, and asked for comment as to whether and why

commenters favor or oppose adoption of the Futures Model.

In choosing between the Legal Segregation Models and the Physical

Segregation Model, the Commission noted that the operational costs for

the Physical Segregation Model would be substantially higher than the

operational costs for the Legal Segregation Models (whether Complete or

with Recourse). With respect to benefits, the Commission believed that

the Physical Segregation Model would provide only incremental

advantages over the Complete Legal Segregation Model with respect to

the mitigation of Fellow-Customer Risk. In addition, the Commission

noted that while the Physical Segregation Model does eliminate

Investment Risk, (i) the Commission was in the process of further

addressing Investment Risk by proposing amendments to regulation 1.25,

and (ii) each FCM and DCO already values investments conservatively.

Finally, the Commission observed that the Physical Segregation Model

would generally enhance portability to the same extent as the Complete

Legal Segregation Model, and therefore would have similar effects on

systemic risk. In addition, the Commission stated that the Physical

Segregation Model and the Complete Legal Segregation Model would likely

enhance portfolio margining to the same extent. Therefore, the

Commission chose not to propose the Physical Segregation Model in the

NPRM.

In choosing between the Complete Legal Segregation Model and the

Legal Segregation with Recourse Model, the Commission noted that

commenters argued that implementing the former would result in

significant Risk Costs,\42\ whereas implementing the latter would

result in no Risk Costs. In addition, the Commission believes that

comments to the ANPR that question the assumptions underlying the upper

estimates of Risk Costs for the Complete Legal Segregation Model have

raised credible issues regarding the accuracy of those estimates.

Nevertheless, the Commission recognized that such assumptions formed an

area of divergence between commenters, and therefore asked for

additional comment on the Risk Costs for the Complete Legal Segregation

Model. The Commission also observed that operational costs for the

Complete Legal Segregation Model and the Legal Segregation with

Recourse Model were approximately the same. With respect to benefits,

the Commission noted that the Complete Legal Segregation Model would

(i) Mitigate Fellow-Customer Risk even in extreme FCM defaults, unlike

the Legal Segregation with Recourse Model, (ii) enhance portability

(and therefore mitigate systemic risk) to a significantly greater

extent than the Legal Segregation with Recourse Model, and (iii) have

an incremental advantage over the Legal Segregation with Recourse Model

with respect to impact on portfolio margining.\43\ Consequently, the

Commission chose not to propose the Legal Segregation with Recourse

Model in the NPRM, but stated that it was still considering this model

as an alternative.

---------------------------------------------------------------------------

\42\ For a more detailed discussion regarding risk costs, see

section VII.B.2.b., infra.

\43\ See 33818 FR at 33828.

---------------------------------------------------------------------------

F. Clarification of the Application of Financial and Segregation

Interpretation No. 10 to Cleared Swaps

In response to the Commission's NPRM, clarification was requested

\44\ regarding the applicability to the cleared swaps market of the

Commission's 2005 Amendment to Financial and Segregation Interpretation

No. 10 on the Treatment of Funds Deposited in Safekeeping Accounts

(``Segregation Interpretation 10-1'').\45\ The commenter noted that

``[u]ntil 2005, the CFTC permitted the use of third-party custodial

accounts for futures margin by pension plans and investment companies

registered under the 1940 Act * * *. In 1984, the CFTC issued Financial

and Segregation Interpretation No. 10 * * *, permitting the use of

third party custodial accounts for the holding of customer property

subject to certain conditions ensuring that an FCM would have immediate

and unfettered access to customer funds.'' \46\ However, Segregation

Interpretation 10-1 made it clear that, with limited exceptions, FCMs

would not be in compliance with the requirements of section 4d(a)(2) of

the CEA if they hold customer funds in a third-party custodial account.

---------------------------------------------------------------------------

\44\ See Committee on Investment of Employee Benefit Assets

(``CIEBA'') December 22, 2011 letter (``CIEBA Supplemental'') at 2.

\45\ Amendment of Interpretation, 70 FR 24768, May 11, 2005

(Notice) The underlying Financial and Segregation Interpretation No.

10 (``Segregation Interpretation 10'') was issued on May 23, 1984,

and can be found at Comm. Fut. L. Rep. (CCH) ]7120.

\46\ CIEBA Supplemental at 4.

---------------------------------------------------------------------------

The Commission agrees that Segregation Interpretation 10-1 does not

apply to Cleared Swaps. Accordingly, and subject to the conditions

described below, Cleared Swaps Customer Collateral may be deposited at

a bank in a third-party safekeeping account, in lieu of posting such

collateral directly to the FCM, without the FCM being deemed in

violation of section 4d(f) of the CEA, and FCMs are permitted to

allowed Cleared Swaps Customers to elect to have their Cleared Swaps

Customer Collateral held in such accounts.

However, if an FCM uses, or allows the use of, a third-party

safekeeping account, that FCM must comply with all of the conditions

for such accounts set forth in Segregation Interpretation 10 as

originally issued in 1984.\47\ In addition, as noted in Segregation

Interpretation 10, though the use of third-party safekeeping accounts

is not prohibited, such collateral constitutes customer property within

the meaning of the Bankruptcy Code. As such, positions and collateral

held in third-party custodial accounts are subject to the U.S.

Bankruptcy Code and applicable provisions in the CEA, which provide for

the pro rata share of available customer property.

---------------------------------------------------------------------------

\47\ These conditions include limitations regarding the titling

and location of the third-party safekeeping account, and

requirements concerning the FCM's rights to promptly liquidate

positions and access collateral.

---------------------------------------------------------------------------

The commenter also requested that the Commission revise or repeal

Segregation Interpretation 10-1 to allow futures and options customers

to have their collateral held in third-party safekeeping accounts.\48\

However, while the Commission does not believe it would be appropriate

to address this request at this time, as it is beyond the scope of this

rulemaking, the Commission may address this concern in the future.

---------------------------------------------------------------------------

\48\ See CIEBA Supplemental at 12

---------------------------------------------------------------------------

The Commission also notes that a number of commenters\49\ have

proposed alternative arrangements that would provide individual

protection for collateral belonging to cleared swaps market

participants (and, in some cases, futures customers) that are willing

and able to bear the associated costs. However, these proposals raise

important risk management and cost externality issues, particularly

with respect to ensuring that collateral is promptly available to DCOs

in the event of a default, ensuring proper capital treatment for the

relevant market participants, and protecting all customers.

---------------------------------------------------------------------------

\49\ See generally CIEBA August 8, 2011 letter (``CIEBA

Original'') at 1-5; Salzman at 1-9; CME at 18; State Street at 2-4.

---------------------------------------------------------------------------

The Commission has directed staff to carefully analyze these

proposals with the goal of developing proposed rules that provide

additional protection for

[[Page 6344]]

collateral belonging to market participants.\50\

---------------------------------------------------------------------------

\50\ The Commission also notes that any market participant may

become a clearing member of a DCO, consistent with the DCO's

membership eligibility requirements and the CEA and Commission

regulations, with all the rights and responsibilities associated

therewith.

---------------------------------------------------------------------------

The Commission agrees with the comment that ``swap margin is not

meant to enhance the swap dealers' bottom line, but to protect the

system against counterparty failure,'' \51\ and remains committed to

protecting the market and market participants.

---------------------------------------------------------------------------

\51\ See CIEBA Supplemental at 14.

---------------------------------------------------------------------------

II. The Final Rules

In determining the scope and content of the final rules, the

Commission has taken into account issues raised by commenters,

including those issues with respect to the costs and benefits

associated with the proposed segregation model for Cleared Swaps

Customer Collateral. The Commission received twenty-eight (28) comment

letters on the proposed rules,\52\ twenty-five (25) of which addressed

the issue of which segregation model the Commission should adopt for

Cleared Swaps Customer Collateral. Of these twenty-five (25), the

strong weight of the commenters rested in favor of individual

protection for Cleared Swaps Customer Collateral, with twenty (20)

comment letters supporting implementation of the Complete Legal

Segregation Model, the Physical Segregation Model or some combination

thereof.\53\ Four (4) comment letters supported adoption of the current

Futures Model,\54\ with one (1) comment letter, from the FIA, showing

support for both the Complete Legal Segregation Model and the Futures

Model.

---------------------------------------------------------------------------

\52\ All comment letters are available through the Commission's

Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1038. Comments addressing the proposed rules

were received from: APG Algemene Pensioen Groep N.V. and the

European Federation Retirement Provision (``APG/EFRP''), American

Council of Life Insurers (``ACLI''), Association of Institutional

Investors (``AII''), Bank of America, N.A., BlackRock, Inc.

(``BlackRock''), Chris Barnard, CME, CIEBA, Federal Home Loan Banks

(``FHLB''), Fidelity Management & Research Co. (``Fidelity''),

Freddie Mac, Futures Industry Association (``FIA''),

IntercontinentalExchange, Inc. (``ICE''), Investment Company

Institute (``ICI''), International Swaps and Derivatives

Association, Inc. (``ISDA''), LCH.Clearnet Group Limited (``LCH''),

Managed Funds Association (``MFA''), Natural Gas Exchange, Inc.

(``NGX''), Newedge USA, LLC (``Newedge''), Och-Ziff Capital

Management Group (``Och-Ziff''), Jerrold E. Salzman, Securities

Industry and Financial Markets Association (``SIFMA''), Tudor

Investment Corporation (``Tudor''), and Vanguard. Note, CIEBA,

Fidelity and the MFA each submitted two comment letters.

\53\ The following commenters support the Complete Legal

Segregation Model outright: ACLI, AII, BlackRock, Mr. Barnard,

Freddie Mac, ICI, ISDA, LCH, SIFMA, and Vanguard. APG/EFRP, CIEBA,

Fidelity, MFA, Tudor and FHLB support implementation of the Physical

Segregation Model.

\54\ The commenters in favor of adoption of the Futures Model

were CME, ICE, Newedge, and Mr. Salzman.

---------------------------------------------------------------------------

After carefully considering all comments, the Commission has

selected the Complete Legal Segregation Model as the most appropriate

segregation model for Cleared Swaps Customer Collateral under section

4d(f) of the CEA. The Commission believes this model provides the best

balance between benefits and costs in order to protect market

participants and the public. The Commission has adopted a number of

clarifications and corrections suggested in the comment letters. In

other cases the final rules are adopted as proposed. The discussion

below provides a more detailed analysis of the issues raised by the

comment letters.

III. Segregation Model for Cleared Swaps Customer Collateral

In the NPRM, the Commission proposed the Complete Legal Segregation

Model but made clear that, because the costs and benefits associated

with the Complete Legal Segregation Model were still being evaluated,

the Commission was considering whether to adopt the Legal Segregation

with Recourse Model as an alternative, and was continuing to assess the

feasibility of the Futures Model and a clearinghouse-by-clearinghouse

Optional Approach. Below is a summary of the comments the Commission

received regarding the alternative segregation models for Cleared Swaps

Customer Collateral.

A. Summary of the Comments

1. Complete Legal Segregation Model

As mentioned above, the majority of the comment letters supported

adoption of the Complete Legal Segregation Model either outright or as

a viable alternative to the Physical Segregation Model, with most

arguing that the Complete Legal Segregation Model presents the best

balance between costs and adequacy of collateral protections,\55\ and

several calling it a ``significant improvement over the'' Futures

Model.\56\ Several commenters also opined that the Complete Legal

Segregation Model is supported by the statutory language and purposes

of the Dodd-Frank Act.\57\

---------------------------------------------------------------------------

\55\ See ACLI at 2; AII at 1; BlackRock at 1; Barnard at 2;

Fidelity at 2; Freddie Mac at 2; LCH at 1-2; SIFMA at 3; Vanguard at

8.

\56\ CIEBA at 1; and FHLB at 1.

\57\ See BlackRock at 3; Fidelity at 5-6; FIA at 3, n. 10; ICI

at 2; Mr. Barnard at 1; and SIFMA at 3, n. 7.

---------------------------------------------------------------------------

In addition, many of the comment letters asserted that the Complete

Legal Segregation Model largely mitigates Fellow-Customer Risk and

enhances the portability of cleared swap positions and associated

collateral.\58\ One commenter stated that the Complete Legal

Segregation Model is ``the most cost effective framework to adequately

protect the margin customers post to cleared swap transactions''

because it effectively mitigates Fellow-Customer Risk, avoids the costs

associated with establishing the Physical Segregation Model by allowing

margin to be held in an omnibus account, and enhances the portability

of cleared swap positions and related margin.\59\ Another commenter

stated that the Complete Legal Segregation Model ``provides the most

operationally efficient framework to manage risk on a daily basis or

port portfolios especially in periods of stress.'' \60\ And yet other

commenters argued that there has been little substantiation of the

``increased costs'' that would arise from implementation of the

Complete Legal Segregation Model, especially with respect to costs

surrounding the reporting requirements associated with maintaining

separate legal accounts given that ``other regulatory rulemakings that

require similar reporting will likely result in many of these

incremental operational costs being incurred regardless of which model

is chosen.'' \61\

---------------------------------------------------------------------------

\58\ See, e.g., AII at 3 (stating that the Complete Legal

Segregation Model effectively eliminates Fellow-Customer Risk,

enhances portability of positions and related margin, and largely

avoids the costs associated with establishing individually

segregated accounts); BlackRock at 2 (arguing that the Complete

Legal Segregation Model ``eliminates Fellow-Customer Risk and

facilitates `immediate' portability of customer positions if

required''); CIEBA Original at 5 (acknowledging that the Complete

Legal Segregation Model could eliminate Fellow-Customer Risk); FHLB

at 3 (agreeing that the Complete Legal Segregation Model greatly

reduces Fellow-Customer Risk); ICI at 3 (stating that the Complete

Legal Segregation Model mitigates Fellow-Customer Risk); ISDA at 1-2

(agreeing that Complete Legal Segregation Model facilitates post-

default portability); MFA at 3-4 (stating that the Complete Legal

Segregation Model eliminates Fellow-Customer Risk and enhances the

portability of customer positions); Vanguard at 4-6 (arguing that

the Complete Legal Segregation Model addresses counterparty risk and

Fellow-Customer Risk); and SIFMA at 5 (stating that Complete Legal

Segregation Model minimizes Fellow-Customer Risk and facilitates the

ability of Cleared Swaps Customers to port their positions to a non-

defaulting FCM).

\59\ AII at 1.

\60\ BlackRock at 6.

\61\ Fidelity at 6. See also LCH at 2-3. The Commission has

adopted a gross margining requirement. See 76 FR at 69374-76.

---------------------------------------------------------------------------

[[Page 6345]]

Several commenters also argued that, in selecting a segregation

model for Cleared Swaps Customer Collateral, the Commission should take

into account the differences between the risk profiles of futures and

over the counter (``OTC'') swaps.\62\

---------------------------------------------------------------------------

\62\ BlackRock at 2-4; Fidelity at 4; SIFMA at 2; Vanguard at 3-

4.

---------------------------------------------------------------------------

Furthermore, commenters argued that, unlike the Futures Model, the

Complete Legal Segregation Model would not degrade the collateral

protections that currently exist in the OTC swaps market.\63\ In

addition, one commenter indicated that the Complete Legal Segregation

Model is ``the model that most closely parallels the protections that

[LCH] understand[s] will be required in Europe under the European

Commission's proposal for a European Market Infrastructure Regulation

(``EMIR'').'' \64\

---------------------------------------------------------------------------

\63\ See Fidelity at 2-4; Freddie Mac at 1; and LCH at 1. See

also Tudor at 2 (arguing that the segregation model selected by the

Commission should not provide a lesser degree of protection for

Cleared Swaps Customer Collateral).

\64\ LCH at 1.

---------------------------------------------------------------------------

Commenters who did not support adoption of the Complete Legal

Segregation Model largely argued that (1) The costs of implementing the

Complete Legal Segregation Model outweigh any of the purported benefits

of such model; \65\ (2) the Complete Legal Segregation Model would, in

the view of the commenter, fail to work operationally or legally,\66\

and does not take into account the operational complexities of multi-

tiered and multi-DCO clearing; \67\ (3) individualized segregation

potentially introduces systemic costs because it impedes timely market

settlements during periods of market stress; \68\ (4) since the Futures

Model has served the industry well during times of stress in the

futures market, it should be the segregation model for Cleared Swaps

Customer Collateral; \69\ (5) the Complete Legal Segregation Model

introduces moral hazard; \70\ or (6) the Complete Legal Segregation

Model does not provide enough protection of Cleared Swaps Customer

Collateral because there is some residual Fellow-Customer Risk,\71\ and

it does not protect against fraud-related risks,\72\ record-keeping/

operational risk, and Investment Risks.\73\ Moreover, several

commenters disagreed with the Commission's interpretation of the

statutory language in the Dodd-Frank Act, and argued that the statutory

language cited by the Commission does not indicate Congressional intent

for individual protection for Cleared Swaps Customer Collateral.\74\

---------------------------------------------------------------------------

\65\ See, e.g., ICE at 11.

\66\ See CME at 5 (stating that ``the framework established by

the [Complete Legal Segregation Model] concept and the proposed

regulations will be wholly inadequate to achieve the Commission's

desired objectives: Namely, in an FCM default, the preservation of

non-defaulting cleared swaps customers' collateral and the ability

to port their positions and collateral to another FCM.'').

\67\ See, e.g., CME at 6-8. See also Mr. Salzman at 7 (stating

that ``the benefits promised by the proponents of the [Complete

Legal Segregation Model] are illusory,'' and arguing that the

Commission's authority to adopt, and a bankruptcy court's

willingness to respect, such model are questionable).

\68\ See ICE at 3.

\69\ See, e.g., Newedge at 8; and CME at 23.

\70\ See, e.g., Newedge at 4-5.

\71\ See, e.g., CME at 7.

\72\ Fraud-related risks are risks associated to an FCM's

fraudulent activity with respect to the cleared swap margin account.

\73\ See, e.g., Tudor at 4; CIEBA Original at 1; and FHLB at 3-6

(each advocating for the adoption and implementation, either

outright or on an optional basis, of the Physical Segregation Model,

though acknowledging that the Complete Legal Segregation Model is

preferable to the Futures Model).

\74\ See CME at 21-22 (arguing that if Congress intended to

change the framework for the protection of customer collateral it

would have explicitly done so); FIA at 3, n. 10 (agreeing that the

complete legal segregation model is permitted by the language of

section 4d(f), but arguing that Commission reliance on the

differences between sections 4d(a) and 4d(b) are misplaced); and ICE

at 5 (arguing that the Commission should not rely on the language in

section 4d(f) because there is no legislative history interpreting

the statutory language).

---------------------------------------------------------------------------

2. Physical Segregation Model

Comments with respect to the Physical Segregation Model were mixed,

with some commenters advocating the adoption of the Physical

Segregation Model outright,\75\ others advocating for its adoption on

an optional basis,\76\ and others arguing that the Physical Segregation

Model should not be adopted because the increased costs and operational

burdens associated with adoption of the Physical Segregation Model

outweigh the benefits.\77\

---------------------------------------------------------------------------

\75\ FHLB at 1; Tudor at 1-2.

\76\ ACLI at 2; CIEBA at 2; MFA at 2; Mr. Salzman at 8.

\77\ BlackRock at 6; Vanguard at 6.

---------------------------------------------------------------------------

Two commenters requested that the Commission reconsider adoption of

the Physical Segregation Model on the basis that (i) Customer

collateral should be individually segregated at both the FCM and the

DCO to provide the same level of customer collateral protection that

currently exists in the OTC swaps market, (ii) none of the other models

are sufficient to fully protect customer collateral from recordkeeping/

operational, investment and fraud-related risks, (iii) the Physical

Segregation Model facilitates porting more than the other models, and

(iv) the commenters would be willing to bear any increased costs

associated with the adoption of the Physical Segregation Model.\78\

---------------------------------------------------------------------------

\78\ See, e.g., ICI at 2 and 9.

---------------------------------------------------------------------------

In addition, though several commenters supported the Complete Legal

Segregation Model as the best alternative under consideration, these

commenters urged the Commission to develop a framework for the adoption

of the Physical Segregation Model because (i) The protections offered

by the Physical Segregation Model are greater than those offered by the

Complete Legal Segregation Model, (ii) the Physical Segregation Model

facilitates porting more than the other models, and (iii) the costs

assertions resulting from implementing the Physical Segregation Model

have either not been substantiated or are costs that the commenters are

willing to bear.\79\

---------------------------------------------------------------------------

\79\ See, e.g., ACLI at 2; BlackRock at 5.

---------------------------------------------------------------------------

Commenters that opposed adoption of the Physical Segregation Model

generally did so on the basis that implementation of the model would

give rise to substantial increased costs with little increased benefit,

as compared with the Complete Legal Segregation Model.\80\

---------------------------------------------------------------------------

\80\ See, e.g., AII at 2; ICE at 9; FIA at 6; SIFMA at 4 n. 9;

and Vanguard at 6.

---------------------------------------------------------------------------

3. Futures Model

As mentioned above, four comment letters supported adoption of the

Futures Model, with one commenter supporting adoption of both the

Complete Legal Segregation Model and the Futures Model.

CME argued that the Futures Model provides the best balance of

costs versus industry risk as a whole and is ``the only approach that

provides both legal and operational certainty to all parties in the

event of an FCM default.'' \81\ According to CME, the Complete Legal

Segregation Model imperfectly protects customer collateral and thus,

``the Commission [should] not rush [sic] to implement a `solution' that

gives superficial comfort, but may not work either operationally or

legally in the event of an actual default.'' \82\ CME encouraged the

Commission to ``engage in further study, and establish a review process

that includes a representative group of interested parties with

expertise in the area, in order to evaluate alternative approaches.''

\83\ Because the Futures Model has effectively protected customer

interests in the futures market, CME recommended that, in the interim,

the Commission implement swaps clearing employing the Futures

[[Page 6346]]

Model.\84\ Moreover, CME suggests that the Commission support a new

industry effort to, at some point in the future, develop and implement

a guaranteed clearing participant relationship that would allow a

client, on an optional basis, to have a direct relationship with a DCO,

with the client's positions guaranteed by a guaranteeing clearing

member of the DCO and the client's Cleared Swaps Customer Collateral

held in an outside account by a third party custodian.

---------------------------------------------------------------------------

\81\ CME at 23.

\82\ Id. at 2.

\83\ Id.

\84\ See id. at 23.

---------------------------------------------------------------------------

Mr. Salzman supported adoption of the Futures Model with optional

full physical segregation of Cleared Swaps Customer Collateral.

ICE advocated adoption of the Futures Model, arguing against

fundamentally changing a clearinghouse's existing operations, and

positing that customers that wish to avoid Fellow-Customer Risk might

explore becoming direct clearing participants once they ``fully

appreciate[e] the substantial costs * * * associated with implementing

and maintaining [the Complete Legal Segregation Model].'' \85\ However,

ICE also proposed, as a middle ground, a model that appears to be based

on the Futures Model but that provides some protection against Fellow-

Customer Risk. ICE explained that its ICE Clear Credit affiliate had

adopted a model under which, ``customers are exposed to `fellow-

customer risk' only with respect to the customer's pro-rata share of

the net customer-related margin requirement of its clearing member.''

\86\ ICE Clear Credit considers ``the difference between a customer's

gross margin requirement and the customer's net margin requirement'' to

be ``Excess Margin.'' \87\ ICE stated that a customer's Excess Margin

is segregated and held by ICE Clear Credit on a custodial basis and is

therefore not exposed to Fellow-Customer Risk. ICE argued that this

model would provide some protection against Fellow-Customer Risk but

would be more cost-effective than the proposed Complete Legal

Segregation Model. In addition, ICE stated that individual segregation

should be offered to customers at the option of a DCO, and also

advanced the notion that the Commission should ``carefully consider and

weigh the costs and benefits of potential customer-related OTC clearing

models by asset class * * *.'' \88\

---------------------------------------------------------------------------

\85\ ICE at 3.

\86\ Id.

\87\ Id. at 3, n. 3.

\88\ ICE at 1-2.

---------------------------------------------------------------------------

Newedge, which submitted a comment on behalf of itself, DRW Trading

Group and nine ``Customers,'' supported adoption of the Futures Model

on the basis that the Futures Model ``is the model most consistent with

the general purposes of Title VII of Dodd-Frank as well as least likely

to add moral hazard to the industry.'' \89\ Newedge argued that Title

VII is about the reduction of systemic risk through the mutualization

of risk, and that by mutualizing credit risk the Futures Model promotes

the purpose of the Dodd-Frank Act because such mutualization encourages

the creation and maintenance of well-capitalized FCMs. In addition,

Newedge argued that the loss of customer off-sets would increase moral

hazard because it would encourage FCMs to maintain less excess capital.

Furthermore, Newedge suggested that, as an alternative to the adoption

of the Complete Legal Segregation Model, the Commission should require

greater FCM disclosure to allow customers to better assess Fellow-

Customer Risk.\90\

---------------------------------------------------------------------------

\89\ Newedge at 2.

\90\ Newedge argues that such disclosure be provided in ``plain

English'' on an annual basis, and include the following data:

The FCM's total equity, regulatory capital and net worth;

The dollar value of the FCM's proprietary margin requirements as

a percentage of its segregated and secured customer margin

requirements;

What number of the FCM's customers comprise an agreed

significant percentage of its customer segregated funds;

The aggregate notional value of non-hedged, principal OTC

transactions into which the FCM has entered;

The amount, generic source and purpose of any unsecured and

uncommitted short-term funding the FCM is using;

The aggregate amount of financing the FCM provides for customer

transactions involving illiquid financial products for which it is

difficult to obtain timely and accurate prices;

The percentage of customer ``bad debts'' the FCM had during the

prior year compared to its year-end segregated and secured customer

funds; and

A summary of the FCM's current risk practices, controls and

procedures.

Newedge at 7. See also FHLB at 7, n. 14 (encouraging the

Commission, in response to a question in the NPRM regarding

additional disclosure of FCM financial information, to make such

information publicly available on a real time basis); and MFA at 5

(arguing that ``if the Commission mandates the disclosure by FCMs of

certain financial information, customers will be in a better

position than they are today to evaluate the financial strength of

their FCM.'').

---------------------------------------------------------------------------

Comment letters supporting individual protection for customer

collateral over the Futures Model generally did so on the basis that

the Futures Model (i) does not protect Cleared Swaps Customer

Collateral from Fellow-Customer Risk, Investment Risk, operational risk

or fraud-related risk, and (ii) does not facilitate the portability of

customer positions and associated collateral in the event of an FCM's

default.\91\

---------------------------------------------------------------------------

\91\ See, e.g., AII at 1-2; BlackRock at 2, 7-8; CIEBA Original

at 5; FHLB at 6-7; Fidelity at 3; Freddie Mac at 1-2; SIFMA at 5;

and Vanguard at 4-5.

---------------------------------------------------------------------------

BlackRock argued that not only does the Futures Model fail to

address the core risk differences between futures and OTC swaps, but

because of the buffer created by the mutualized risk provided by the

customer collateral, the Futures Model may result in less stringent

selection and oversight of customers by FCMs.\92\ In addition,

BlackRock argued that the moral hazard argument advocated by proponents

of the Futures Model presumes that futures customers have access to

information that allows them to make informed decisions regarding their

fellow customers. However, BlackRock stated that access to such

information is currently lacking, there are no requirements or

incentives for a DCO or FCM to inform a customer when a fellow customer

is in a stress or potential default situation and, as a result,

customers are forced to rely on DCOs and regulators for protection.\93\

---------------------------------------------------------------------------

\92\ Blackrock at 8.

\93\ Id.

---------------------------------------------------------------------------

Freddie Mac argued that by allowing DCOs to access the collateral

of non-defaulting customers to cover the losses of defaulting

customers, the Futures Model provides a ``subsidy to DCOs, FCMs and

their riskiest customers at the expense of customers that present less

risk[, and] this non-transparent shifting of risk would create moral

hazard and inefficient credit decisions.'' \94\

---------------------------------------------------------------------------

\94\ Freddie Mac at 2.

---------------------------------------------------------------------------

Similarly, FHLB argued that DCOs and FCMs should bear all Fellow-

Customer Risk as they are in a superior position to conduct analyses of

other cleared swap customers.\95\ In addition, FHLB indicated that if

the Commission adopts the Futures Model as the segregation model for

Cleared Swaps Customer Collateral, it would be anomalous for market

participants to have the initial margin they post for Cleared Swaps

face greater risk than the initial margin they post for uncleared

swaps.\96\ Moreover, the Futures Model would impede portability because

the collateral posted for Cleared Swaps ``could be tied up in the

omnibus account indefinitely.'' \97\

---------------------------------------------------------------------------

\95\ FHLB at 6-7.

\96\ FHLB at 7. FHLB also states that market participants have a

statutory right to segregate initial margin they post for uncleared

swaps with an independent custodian. Id. at 6.

\97\ FHLB at 7.

---------------------------------------------------------------------------

SIFMA stated that avoiding Fellow-Customer Risk presented by the

Futures Model should be the most important

[[Page 6347]]

objective in selecting a segregation model for Cleared Swaps Customer

Collateral and, as such, none of the members of the Asset Management

Group supports the Futures Model.\98\ In addition, SIFMA argued that

the Futures Model does not facilitate portability to the same extent as

the Complete Legal Segregation Model and, therefore, is not as

effective at reducing systemic risk.\99\

---------------------------------------------------------------------------

\98\ SIFMA at 3.

\99\ See SIFMA at 4-6.

---------------------------------------------------------------------------

Vanguard asserted that the Futures Model exposes market

participants to Fellow-Customer Risk and because this risk is not a

factor in the OTC swaps markets, the magnitude of such risk is not

something that a customer could ever assess, especially given the

``complete lack of transparency with respect to [an] FCM's other

customers and their trading positions.'' \100\ Furthermore, Vanguard

stated that mutualization of customer losses effectively allows ``less

sophisticated analysis of the risk presented by individual customers

and their trading portfolios as such individual risk can ultimately be

covered by the overall pool of margin posted by all of the FCM's

customers,'' with the result that ``riskier customers (and trading

portfolios) [are] likely to be under margined and safer clients (and

trading portfolios) [are] likely to be over margined relative to their

actual level of risk presented to the system.'' \101\ In sum, Vanguard

stated that, given the differences between the swaps and futures

markets, the Futures Model could expose a Cleared Swaps Customer to

significantly greater and potentially unlimited risk.\102\

---------------------------------------------------------------------------

\100\ Vanguard at 5.

\101\ Id.

\102\ Id.

---------------------------------------------------------------------------

4. Legal Segregation With Recourse Model

None of the comment letters received by the Commission appeared to

support the Legal Segregation with Recourse Model. Commenters that

discussed this model generally stated that the Commission should not

adopt the Legal Segregation with Recourse Model because either (1) by

failing to mitigate Fellow-Customer Risk, it is substantially inferior

to the Complete Legal Segregation Model \103\ or (2) it suffers from

the same shortcomings as the Complete Legal Segregation Model since it

is costly to implement and fails to mitigate investment and operational

risks.\104\

---------------------------------------------------------------------------

\103\ See BlackRock at 7; FHLB at 7; Freddie Mac at 2; FIA at 6-

7; MFA at 2; and Vanguard at 4.

\104\ See, e.g., CME at 16.

---------------------------------------------------------------------------

5. Optional Approach

Though some commenters expressed a desire to have optional full

physical segregation of Cleared Swaps Customer Collateral, none of the

commenters supported the Optional Approach outlined by the

Commission.\105\ Under this approach, each DCO would choose the level

of customer collateral protection it chooses to offer.\106\ The

Commission noted that this approach might be reconciled with section

766(h) of the Bankruptcy Code by permitting DCOs to require that FCMs

establish separate legal entities, each of which is limited to clearing

at DCOs that use only the same customer collateral protection

model.\107\

---------------------------------------------------------------------------

\105\ See, e.g., MFA at 3 n. 11 (stating ``[t]he Commission

should allow market participants to elect the Physical Segregation

Model but only to the extent that it is compatible with the Complete

Legal Segregation Model. We are not advocating that the Commission

adopt the ``Optional Approach'' set forth in the Proposing Release,

because we believe that approach would be very difficult to

implement.''); ACLI at 2 (supporting the option to negotiate and

select the Physical Segregation Model); BlackRock at 5 (stating that

BlackRock would support an optional approach if the Commission

believes such an approach would be prudent, but cautions that

optionality may present implementation challenges and result in

portability delays); CIEBA Original at 1 (promoting optional

individual segregation of Cleared Swaps Customer Collateral); CME at

17-20 (arguing that the Commission should support efforts to

establish programs that would permit individuals to physically

segregate the collateral associated with their Cleared Swaps

positions on an optional basis); and Tudor at 6 (arguing that if the

Commission does not adopt the Physical Segregation Model, the

Commission should ``require DCOs to offer various segregation models

to their cleared swaps customers, including full physical

segregation.'').

\106\ See 76 FR at 33825.

\107\ See 76 FR at 33829.

---------------------------------------------------------------------------

One commenter stated that it is ``likely that the benefits of

creating such a regulatory structure would be illusory,'' \108\ while

another argued that ``[o]ptionality will produce complexity and expense

that might be tolerable when the cleared swaps market is well

established, but that will be burdensome to a developing market.''

\109\ In addition, one commenter expressed concern regarding the

appropriateness of the Commission adopting a segregation regime ``that

provides protection to customers based on their ability and willingness

to pay.'' \110\

---------------------------------------------------------------------------

\108\ CME at 20.

\109\ ISDA at 2.

\110\ FIA at 6.

---------------------------------------------------------------------------

B. Discussion of the Comments

After careful analysis of the issues raised by the comment letters

with respect to the selection of a segregation model for Cleared Swaps

Customer Collateral, the Commission is adopting the Complete Legal

Segregation Model. As described above, the majority of market

participants supported adoption of either the Complete Legal

Segregation Model or the Physical Segregation Model. In addition, while

certain technical corrections/clarifications were requested, none of

the commenters identified material new information with respect to

costs or benefits associated with the adoption of the Complete Legal

Segregation Model or any other model under consideration. Some

commenters did, however, re-iterate their view that their business

model depended upon receiving stronger protection for their Cleared

Swaps Customer Collateral than what exists under the Futures Model.

These commenters are accustomed to paying for the higher costs implicit

in separate accounting in the current bilateral market.

On the other hand, CME, ICE, and Mr. Salzman identified a number of

issues with the Complete Legal Segregation Model, including a number of

limitations on the protection it provides to customers. They did not,

however, provide reason to reject the conclusion that the Complete

Legal Segregation Model provides substantially greater protection

against Fellow-Customer Risk than the Futures Model.

CME notes \111\ that a portion of the Cleared Swaps Customer

Collateral will be held at the FCM, not the DCO, and that this

collateral will not be protected by Complete Legal Segregation in the

event that an FCM becomes insolvent. This proposition is true \112\ but

is of little or no relevance to the comparison of Complete Legal

Segregation with the Futures Model favored by these commenters.

Complete Legal Segregation is intended to protect against Fellow-

Customer Risk. As discussed in the NPRM and above,\113\ Fellow-Customer

Risk is the risk that the collateral of one customer will be used to

compensate a DCO for market losses resulting from the swaps of another

customer.\114\ In other words, Fellow-Customer Risk arises in

connection with collateral maintained in an FCM's customer account

posted with a DCO because, under the Futures Model, the DCO is

potentially entitled to take all of the collateral in this account to

cover losses created by the swaps of any customer. However, Cleared

Swaps Customer Collateral held at the FCM (or at a location other than

at the DCO, such as a bank) is not accessible to the DCO. Thus, such

[[Page 6348]]

collateral is not subject to Fellow-Customer Risk.\115\ While Cleared

Swaps Customer Collateral in the customer account at the FCM is

available to meet customers' swaps-related obligations to the FCM, the

FCM is prohibited by statute from using one customer's Cleared Swaps

Customer Collateral as margin or security for another customer's

swaps.\116\

---------------------------------------------------------------------------

\111\ CME at 6.

\112\ See supra note 13.

\113\ See supra at Section 1.B.6.

\114\ 76 FR at 33821 n. 21.

\115\ As explained above, FCMs typically maintain two separate

Cleared Swaps Customer Accounts. One is maintained at the DCO and

contains collateral required by the DCO to secure current swaps

positions. The second is maintained by the FCM itself, typically at

a bank, and contains collateral provided to the FCM by customers but

not currently posted to the account at the DCO.

\116\ Section 4d(f)(2)(B) of the CEA, 7 U.S.C. 6d(f)(2)(B).

---------------------------------------------------------------------------

To be sure, Cleared Swaps Customer Collateral is subject to

operational risk--the risk that, due to fraud, incompetence, or other

mishap, customer funds that are required to be segregated are lost.

Operational risk, however, is common to all of the segregation models

for Cleared Swaps Customer Collateral, including the Physical

Segregation Model.\117\ Collateral at the FCM is also subject to a

modicum of Investment Risk. But Commission regulation 1.25, upon which

regulation 22.2(e)(1) is based, is designed to ensure that customer

segregated funds are invested in a manner that minimizes their exposure

to credit, liquidity, and market risks both to preserve their

availability to customers and DCOs and to enable investments to be

quickly converted to cash at a predictable value in order to avoid

systemic risk. Towards these ends, regulation 1.25 establishes a

general prudential standard by requiring that all permitted investments

be ``consistent with the objectives of preserving principal and

maintaining liquidity.'' \118\

---------------------------------------------------------------------------

\117\ Moreover, as noted above (see supra section I.D.2), while

the LSOC Model does not protect against operational risk any more

than the Futures Model, it is superior in that it enhances the

ability to transfer collateral after an insolvency caused by

operational risk.

\118\ See regulation 1.25(b).

---------------------------------------------------------------------------

CME also provides a detailed description of how, due to the ``the

extended operational timeline for derivatives clearing and the netting

of payments,'' a customer could default on a payment on Tuesday, but

the DCO would, due to a countervailing gain by a different customer or

customers of the same clearing member, not see such a default until

after Wednesday's clearing cycle (payments for which may not be due

until Thursday morning).\119\ This analysis elides the fact that,

pursuant to the calculations required under regulation 22.2(f), an FCM

with a customer who incurred a loss in excess of that customer's

Cleared Swaps Customer Collateral would, unless and until that customer

posted additional collateral, be required to have covered such loss

with the FCM's own capital deposited into the Cleared Swaps Customer

Account. If, at any moment, such customer loss was not covered by the

FCM's own capital, then the FCM would be in violation of its

segregation requirements. Pursuant to Commission regulation 1.12(h),

---------------------------------------------------------------------------

\119\ CME at 9.

[w]henever a person registered as a futures commission merchant

knows or should know that the total amount of its funds on deposit

in segregated accounts on behalf of customers * * * is less than the

total amount of such funds required by the Act and the Commission's

rules to be on deposit in segregated * * * accounts on behalf of

such customers, the registrant must report such deficiency

immediately by telephonic notice * * * to the registrant's

designated self-regulatory organization and the principal office of

the Commission in Washington, DC * * *.\120\

---------------------------------------------------------------------------

\120\ Commission regulation 1.12(h) emphasis added.

Thus, an FCM whose customer suffers such a loss which is not

covered by the FCM's own capital on deposit in the Cleared Swaps

Customer Account will certainly know of such deficiency no later than

noon the next day (Wednesday in CME's example), when it will be

required, pursuant to regulation 22.2(g), to compute its segregated

funds requirements and the amount of segregated funds it has on deposit

to meet such requirements. Moreover, the Commission believes that an

FCM carrying a customer account that suffers losses in excess of that

firm's ability to cover ``should know'' of such losses by the end of

that trading day (Tuesday in CME's example).

Such notice will permit the Commission to act to notify the

relevant clearing organizations and to ensure that prompt action is

taken to either bring capital in to enable the FCM to meet its

segregated funds requirements or to otherwise act to minimize customer

losses.

CME implies that a successful porting of customer accounts requires

information that is ``100% accurate,'' \121\ and that an FCM is

unlikely to meet that standard each day. CME also notes that there may

be portfolio changes in customer accounts on the day of default.\122\

Moreover, CME notes that a defaulting FCM may have systems that

fail.\123\ CME notes that in the case of Lehman Brothers,\124\ there

was a ``rushed, confused, uncertain and near-panic atmosphere,'' as

described in the report of the SIPA Trustee.\125\

---------------------------------------------------------------------------

\121\ CME at 13.

\122\ Id. at 12.

\123\ Id. at 14.

\124\ The Lehman Brothers FCM was placed into a Securities

Investor Protection Corporation liquidation on Friday, September 19,

2008.

\125\ CME at 14 (citation omitted).

---------------------------------------------------------------------------

Recent experience demonstrates, however, that transfers can occur

despite less than perfect information. For example, in the case of the

bankruptcy of Lehman Brothers the commodity customer accounts were

effectively transferred to Barclays over the weekend of September 20-

21, 2008, immediately following the commencement of the liquidation of

the firm,\126\ and any discrepancies were resolved, despite the

difficulties described. Indeed, the key issue will be to identify the

collateral attributable to the defaulting customer, as distinguished

from the collateral attributable to all other customers, as

discrepancies between non-defaulting customers can be resolved either

as transferred accounts are reconciled, or through the claims process.

---------------------------------------------------------------------------

\126\ This transfer was authorized in the hours immediately

following the commencement of Lehman's liquidation, and was

implemented in the hours immediately thereafter.

---------------------------------------------------------------------------

Thus, while CME is correct in stating that ``the risk of ultimate

financial loss to customers due to a fellow-customer default is reduced

but certainly not eliminated under CLSM,'' \127\ the Commission

concludes, based on its experience with its rules in general and with

FCM bankruptcies in particular, that the probability and probable

amount of such loss is far less than CME implies.

---------------------------------------------------------------------------

\127\ CME at 15.

---------------------------------------------------------------------------

Moreover, the swift portability of collateral associated with

customer positions in the event of an FCM's default remains problematic

under the Futures Model where there is a customer default. Furthermore,

many of the imperfections of the Complete Legal Segregation Model and

the residual Fellow-Customer Risk associated therewith that were

highlighted by CME arise from the ``last-day risk'' that results from

the fact that information about each customer's positions is only

provided once each day. However, the NPRM made clear in relevant

portions of sections 22.11 and 22.12, and the Commission reiterates

herein, that information must be provided and calculations must be made

at least once a business day. In other words, many of the imperfections

discussed by CME are not inherent to the Complete Legal Segregation

Model. Rather, each DCO is free to make improvements to that

[[Page 6349]]

minimum regulatory standard if the DCO finds such improvements to be

technologically feasible and economically justifiable. For example, a

DCO could require its clearing members to identify the customer

associated with each swap as it is cleared, and the DCO could use this

information to associate gains and losses more tightly with each

customer, thereby minimizing ``last-day risk.'' The NPRM and this final

rule simply set a minimum threshold for daily tracking.

With respect to costs associated with evaluating the credit risks

of individual customers, CME noted that it calculates, ``at the end of

each trading day * * * for each FCM's cleared swaps customer account *

* * the net position of each customer in the account [and] the net

margin requirement for each customer in the account.'' \128\ Thus,

based on CME's description of its current clearing practices, it would

appear that CME already undertakes an individualized evaluation of the

sufficiency of the collateral posted by each customer of an FCM.\129\

In addition, as CME notes, ``FCMs are subject to compliance audits that

are conducted for each FCM by the DCO serving as its ``designated self-

regulatory organization.'' \130\ It would therefore seem that at least

some of the costs associated with evaluating the credit risk of

individual customers are already being incurred by DCOs.

---------------------------------------------------------------------------

\128\ Id. at 9 (emphasis supplied).

\129\ In addition, during the Second Roundtable, Ms. Taylor of

CME stated that with respect to risk management, CME is ``set up to

do it in the over-the-counter business at the individual customer

level.'' See Second Roundtable Tr. at168, l. 10.

\130\ See also Second Roundtable Tr. at 171, l. 18 (Ms. Taylor

stating that ``on a day-to-day basis we don't see the collateral

that's in the account of a customer at an FCM, but we do have

transparency into the efficacy of the practices of holding margin

and holding it in segregated accounts through the financial

supervision and audit functions so that there is ongoing monitoring

of that * * *'').

---------------------------------------------------------------------------

With respect to ICE's proposal, the Commission notes that it would

provide less Fellow-Customer Risk protection than the Complete Legal

Segregation Model. The fact that swap customers seem to overwhelmingly

favor at least as much Fellow-Customer Risk protection as afforded to

them under the Complete Legal Segregation Model, notwithstanding the

potential costs, weighs in favor of the Complete Legal Segregation

Model rather than ICE's proposal.

With respect to Newedge's suggestion for increased disclosure of

FCM information, additional disclosure is often beneficial, and the

Commission will consider additional disclosure requirements as a means

of enhancing protection for collateral belonging to market

participants. However, because of confidentiality concerns, any

feasible enhanced disclosure is insufficient for quantifying risk

exposure to Fellow-Customer Risk and, thus, insufficient for providing

Cleared Swaps Customers with the ability to effectively manage such

exposure.\131\ Moreover, even if it were practical to provide Cleared

Swaps Customers with information sufficient to assess Fellow-Customer

Risk, that task is better left to the DCO since (1) DCOs have a

concentrated ability to ensure adequate risk mitigation, and (2) having

each Cleared Swaps Customer effectively risk-manage each FCM would

likely entail duplication with resulting cost.

---------------------------------------------------------------------------

\131\ See Second Roundtable at p. 183, 1.12-p. 184, 1.10 (In

reference to the disclosure of additional FCM information, Mr. Kahn

stating ``Barclays does agree and would be willing to show our risk-

management procedures and policies, and we do talk to our buy side

clients about that * * * [but] if Barclays is providing clearing

services for any of the individual firms on the other side of the

table, we do not say that, nor would we ever give out any position

level information. It is very important to us that in whatever

paradigm it's set up and how you evaluate from a risk-management

standpoint that the buy side and their trades that they've put on

that we are serving remains confidential and does not leak to the

market in any side.''); and Second Roundtable at p. 185, 1.6 (Ms.

Taylor stating that ``when we know when people clear, that's very

confidential information and I'm very sympathetic to the fear about

fellow customer risk, but I'm also very sympathetic to the fact that

none of you would want your information disclosed so that there is a

balance on the other side * * *''). See also In re Stotler and Co.,

144 B.R. 385, 393 (Bankr.N.D.Ill. 1992) (``[T]he legislative history

of 11 U.S.C. 766 emphasizes that the risk of a broker's bankruptcy

is not to be borne by the customer * * *.'' Individual customers

``face a formidable task in researching the relative solvency,

reputation, and success of competing FCMs.'').

---------------------------------------------------------------------------

Thus, after careful analysis of the comments, the Commission

believes that the Complete Legal Segregation Model provides the most

appropriate framework for the protection of Cleared Swaps Customer

Collateral at this time. None of the segregation models the Commission

considered provides perfect protection for Cleared Swaps Customer

Collateral, and the degree of imperfection of any of the models is

influenced by ``the facts and circumstances'' of an FCM default.

However, as CME notes, the Complete Legal Segregation Model ``would, on

its face, lead to greater protection of cleared swaps customer

collateral against Fellow-Customer Risk than the Futures Model'' \132\

and is ``more likely to facilitate portability of cleared swaps

customer positions than the Futures Model, in the event of an FCM

default in its cleared swaps customer account * * *.'' \133\

Furthermore, the Complete Legal Segregation Model provides the best

balance between benefits and costs in order to protect market

participants and the public.

---------------------------------------------------------------------------

\132\ CME at 16.

\133\ Id.

---------------------------------------------------------------------------

Finally, while the Complete Legal Segregation Model is a critical

step in the efforts to protect customers and their collateral, as noted

above, the Commission is actively considering seeking notice and

comment on a proposal to allow individual protection of client assets.

In addition, the Commission is directing staff to look into the

possibility of adopting the Complete Legal Segregation Model for the

futures market. The Commission remains committed to protecting market

participants.

IV. Section by Section Analysis: Regulation Part 22

A. Regulation 22.1: Definitions

Proposed regulation 22.1 established definitions for, inter alia,

the following terms: ``cleared swap,'' ``cleared swaps customer,''

``cleared swaps customer account,'' ``cleared swaps customer

collateral,'' ``cleared swaps proprietary account,'' ``clearing

member,'' \134\ ``collecting futures commission merchant,''

``commingle,'' ``customer,'' ``depositing futures commission

merchant,'' ``permitted depository,'' \135\ and ``segregate.''

---------------------------------------------------------------------------

\134\ Under the Commission's proposal, the term ``clearing

member'' means ``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.''

\135\ The Commission proposed to define ``permitted depository''

as a depository that is a bank located in the United States, a trust

company located in the United States, a Collecting Futures

Commission Merchant registered with the Commission (but only with

respect to a Depositing Futures Commission Merchant providing

Cleared Swaps Customer Collateral), or a derivatives clearing

organization registered with the Commission. In addition, the FCM or

the DCO must hold a written acknowledgment letter from the

depository as required by proposed regulation 22.5.

---------------------------------------------------------------------------

1. ``Segregate'' and ``Commingle''

Regulation 22.1 proposed definitions for the terms ``segregate''

and ``commingle'' that are intended to codify the common meaning of

such terms under the part 1 of the Commission's regulations (the ``Part

1 Provisions''). Pursuant to the proposal, to ``segregate'' two or more

items means to keep them in separate accounts and to avoid combining

them in the same transfer between accounts. In contrast, ``commingle''

means to hold two or more items in the same account, or to combine such

items in a transfer between accounts. The Commission did not receive

comments on these

[[Page 6350]]

proposed definitions and is, therefore, adopting them as proposed.

2. ``Cleared Swap''

Regulation 22.1 proposed a definition of the term ``Cleared Swap''

that (i) excludes, for purposes of Part 22 only, cleared swaps (and

related collateral) that, pursuant either to a Commission rule,

regulation, or order (including an order under section 4d(a) of the

CEA) or to a DCO rule approved in accordance with regulation

39.15(b)(2),\136\ are commingled with futures contracts (and related

collateral) in a customer account established for the futures

contracts, but (ii) includes, for purposes of Part 22 only, futures

contracts or foreign futures contracts (and, in each case, related

collateral) that, pursuant to either a Commission rule, regulation, or

order (including an order under section 4d(f) of the CEA) or to a DCO

rule approved in accordance with regulation 39.15(b)(2),\137\ are

commingled with cleared swaps (and related collateral) in a customer

account established for the cleared swaps. The Commission did not

receive comments on the proposed definition of ``Cleared Swap'' and is

adopting it as proposed with one change. The Commission finalized

regulation 39.15 on October 18, 2011.\138\ That final regulation

requires a DCO seeking to commingle Cleared Swaps (and related

collateral) with futures contracts (and related collateral) in a

futures account to petition for a Commission order under section 4d(a)

of the CEA. Thus, the final definition of ``Cleared Swap'' in this

rulemaking removes the reference to DCO rule approval procedures

relevant to such commingling.

---------------------------------------------------------------------------

\136\ Section 4d(a) of the CEA, 7 U.S.C. 6d(a).

\137\ Section 4d(f) of the CEA, 7 U.S.C. 6d(f).

\138\ 76 FR 69441.

---------------------------------------------------------------------------

3. ``Cleared Swaps Customer'' and ``Customer''

Regulation 22.1 proposed definitions of ``Cleared Swaps Customer''

and ``Customer.'' The Commission is adopting the definitions of

``Cleared Swaps Customer'' and ``Customer'' essentially as proposed,

except that a technical amendment is made to the definition of Cleared

Swaps Customer to clarify that a clearing member of a DCO is not a

Cleared Swaps Customer with respect to Cleared Swaps cleared on that

DCO.

4. ``Cleared Swaps Customer Collateral''

Proposed regulation 22.1 defined Cleared Swaps Customer Collateral

to include (i) money, securities, or other property that an FCM or a

DCO receives, from, for, or on behalf of a Cleared Swaps Customer that

is intended to or does margin, guarantee, or secure a Cleared Swap

\139\ or, if the Cleared Swap is in the form or nature of an option,

constitutes the settlement value of such option and (ii) ``accruals,''

which are the money, securities, or other property that an FCM or DCO

receives, either directly or indirectly, as incident to or resulting

from a Cleared Swap that the FCM intermediates for a Cleared Swaps

Customer. The proposed definition explicitly included a Cleared Swap in

the form or nature of an option as Cleared Swaps Customer Collateral,

but did not explicitly include option premiums as Cleared Swaps

Customer Collateral. The proposed definition also explicitly included

in ``accruals'' the money, securities, or other property that a DCO may

receive relating to the Cleared Swap that an FCM intermediates for a

Cleared Swap Customer.

---------------------------------------------------------------------------

\139\ Proposed regulation 22.1 provides that ``Cleared Swaps

Customer Collateral'' includes collateral that an FCM or a DCO

receives from, for, or on behalf of a Cleared Swaps Customer that

either (i) is actually margining, guaranteeing, or securing a

Cleared Swap or (ii) is intended to margin, guarantee, or secure a

Cleared Swap. This provision is a clarification of ``customer

funds'' as defined in regulation 1.3, which includes ``all money,

securities, and property received by a futures commission merchant

or by a clearing organization from, for, or on behalf of, customers

or option customers * * * to margin, guarantee, or secure futures

contracts.''

---------------------------------------------------------------------------

FIA suggested that the Commission confirm that the term Cleared

Swaps Customer Collateral includes all assets provided by a Cleared

Swaps Customer, including any sums required by an FCM to margin a

Cleared Swap, even if that sum is in excess of the amount required by

the relevant DCO, as well as collateral ``voluntarily'' deposited by a

Cleared Swaps Customer in a Cleared Swaps Customer Account.\140\ In

response, the Commission is clarifying that the definition of Cleared

Swaps Customer Collateral includes any sums required by an FCM that is

intended to, or does, margin a Cleared Swap as well as collateral

``voluntarily'' deposited by, or on behalf of, a Cleared Swaps Customer

in a Cleared Swaps Customer Account. Moreover, in response to this

comment, the Commission is adding a new section 22.13(c), which states

that collateral posted by a Cleared Swaps Customer in excess of the

amount required by a DCO (the ``excess collateral'') may be transmitted

by the Cleared Swaps Customer's FCM to the DCO if, but only if, (i) the

FCM is permitted to do so by DCO rule and (ii) the DCO provides a

mechanism by which the FCM can identify the amount of such excess

collateral attributable to each Cleared Swaps Customer, and such

mechanism is employed effectively to accomplish that goal.

---------------------------------------------------------------------------

\140\ See FIA at 7-8.

---------------------------------------------------------------------------

5. ``Cleared Swaps Customer Account'' and ``Cleared Swaps Proprietary

Account''

As proposed, regulation 22.1 defined a ``Cleared Swaps Customer

Account'' as (i) an account that an FCM maintains at a Permitted

Depository for the Cleared Swaps (and related collateral) of its

Cleared Swaps Customers, or (ii) an account that a DCO maintains at a

Permitted Depository for collateral related to Cleared Swaps that the

FCM members intermediate for their Cleared Swaps Customers. Regulation

22.1 also proposed a definition for ``Cleared Swaps Proprietary

Account'' that is substantially similar to regulation 1.3, which

defines ``Proprietary Account'' for futures contracts. The Commission

requested comment on whether the proviso in paragraph (b)(8), which

states that ``an account owned by any shareholder or member of a

cooperative association of producers, within the meaning of section 6a

of the Act, which association is registered as an FCM and carries such

account on its records, shall be deemed to be a Cleared Swaps Customer

Account and not a Cleared Swaps Proprietary Account of such

association, unless the shareholder or member is an officer, director,

or manager of the association,'' remains relevant, particularly with

respect to Cleared Swaps. The Commission did not receive comments on

these proposed definitions and is, therefore, adopting the definitions

of ``Cleared Swaps Customer Account'' and ``Cleared Swaps Proprietary

Account'' as proposed.

6. ``Clearing Member''

Regulation 22.1 proposed a definition of ``Clearing Member.'' The

Commission did not receive comments on this proposed definition.

Therefore, the Commission is adopting the definition of ``Clearing

Member'' as proposed.

7. ``Collecting Futures Commission Merchant'' and ``Depositing Futures

Commission Merchant''

Proposed regulation 22.1 defined a ``Collecting Futures Commission

Merchant'' or ``Collecting FCM'' as one that carries Cleared Swaps on

behalf of another FCM and the Cleared Swaps Customers of that other FCM

and, as part of doing so, collects Cleared Swaps

[[Page 6351]]

Customer Collateral.\141\ In contrast, a ``Depositing Futures

Commission Merchant'' or ``Depositing FCM'' was defined as one that

carries Cleared Swaps on behalf of its Cleared Swaps Customers through

a Collecting FCM, and, as part of doing so, deposits Cleared Swaps

Customer Collateral with such Collecting FCM. The Commission did not

receive comments on these proposed definitions and is adopting the

definitions of ``Collecting Futures Commission Merchant'' and

``Depositing Futures Commission Merchant'' as proposed.

---------------------------------------------------------------------------

\141\ For the avoidance of doubt, an FCM does not become a

Collecting FCM simply by intermediating the proprietary transactions

of another FCM. An FCM only becomes a Collecting FCM by

intermediating, on behalf of another FCM, Cleared Swaps belonging to

Cleared Swaps Customers (and the relevant collateral).

---------------------------------------------------------------------------

8. ``Permitted Depository''

Regulation 22.1 proposed a definition of ``Permitted Depository.''

The Commission did not receive comments on this proposed definition and

is, therefore, adopting the definition of ``Permitted Depository'' as

proposed.

B. Regulation 22.2--Futures Commission Merchants: Treatment of Cleared

Swaps Customer Collateral

Regulation 22.2 proposed requirements for an FCM's treatment of

Cleared Swaps Customer Collateral, as well as the associated Cleared

Swaps.

1. In General

Proposed regulation 22.2(a) required an FCM to treat and deal with

the Cleared Swaps of Cleared Swaps Customers, as well as associated

Cleared Swaps Customer Collateral, as belonging to the Cleared Swaps

Customers. The Commission did not receive any comments on regulation

22.2(a) and is therefore adopting regulation 22.2(a) as proposed.

2. Location of Collateral

Proposed regulation 22.2(b) required that an FCM segregate all

Cleared Swaps Customer Collateral that it receives. Additionally,

proposed regulation 22.2(b) required that an FCM adopt one of two

methods to hold segregated Cleared Swaps Customer Collateral, which

parallel either implicit assumptions or explicit provisions of

regulation 1.20(a).

The Commission did not receive any comments on regulation 22.2(b)

and is therefore adopting regulation 22.2(b) as proposed.

3. Commingling

Proposed regulation 22.2(c) permitted an FCM to commingle the

Cleared Swaps Customer Collateral of multiple Cleared Swaps Customers,

while prohibiting the FCM from commingling Cleared Swaps Customer

Collateral with:

FCM property, except as permitted under proposed

regulation 22.2(e) (as discussed below); or

``customer funds'' (as regulation 1.3 defines such term)

for futures contracts or the ``foreign futures or foreign options

secured amount'' (as regulation 1.3 defines such term), except as

permitted by a Commission rule, regulation or order (or a derivatives

clearing organization rule approved pursuant to regulation

39.15(b)(2)).\142\

---------------------------------------------------------------------------

\142\ As the discussion on the proposed definition of ``Cleared

Swaps'' highlights, if the Commission adopts a rule or regulation or

issues an order pursuant to section 4d(a) of the CEA, or if the

Commission approves DCO rules pursuant to regulation 39.15(b)(2)

permitting such commingling, the Commission would apply the

corresponding provisions and Part 190 to the Cleared Swap (and

related collateral) as if the swap constituted a futures contract

(and related collateral).

In contrast, if the Commission adopts a rule or regulation or

issues an order pursuant to section 4d(f) of the CEA, or if the

Commission approves DCO rules pursuant to regulation 39.15(b)(2)

permitting such commingling, the proposed definition of ``Cleared

Swap'' would operate to apply Part 22 and Part 190 to (i) the

futures contract (and related collateral) or (ii) the foreign

futures contract (and related collateral) as if such contracts

constituted Cleared Swaps (and related collateral).

---------------------------------------------------------------------------

The Commission did not receive any comments on regulation 22.2(c)

and is therefore adopting regulation 22.2(c) as proposed.

4. Limitations on Use

Proposed regulation 22.2(d) prohibited an FCM from (i) using, or

permitting the use of, the Cleared Swaps Customer Collateral of one

Cleared Swaps Customer to purchase, margin, or settle the Cleared

Swaps, or any other transaction, of a person other than the Cleared

Swaps Customer; (ii) using Cleared Swaps Customer Collateral to margin,

guarantee, or secure the non-Cleared Swap contracts (e.g., futures or

foreign futures contracts) of the entity constituting the Cleared Swaps

Customer; \143\ (iii) imposing, or permitting the imposition of, a lien

on Cleared Swaps Customer Collateral, including on any FCM residual

financial interest therein; and (iv) claiming that any of the following

constitutes Cleared Swaps Customer Collateral:

---------------------------------------------------------------------------

\143\ As mentioned above, an entity may simultaneously transact

(i) Futures contracts, (ii) foreign futures contracts, (iii) Cleared

Swaps, and (iv) uncleared swaps. Such entity would constitute a

Cleared Swaps Customer only with respect to its Cleared Swaps.

---------------------------------------------------------------------------

Money invested in the securities, memberships, or

obligations of any DCO, designated contract market (``DCM''), swap

execution facility (``SEF''), or swap data repository (``SDR''); or

Money, securities, or other property that any DCO holds

and may use for a purpose other than to margin, guarantee, secure,

transfer, adjust or settle the obligations incurred by the FCM on

behalf of its Cleared Swaps Customers.

ISDA argued that these proposed rules could prevent or inhibit

portfolio margining, even where netting itself is legally enforceable,

and stated that the Commission should ``acknowledge in rule that excess

collateral may be managed and applied so as to facilitate portfolio

based-margining (including to the benefit of uncleared swaps).'' \144\

FIA requested that the Commission confirm that regulation 22.2(d) will

permit FCMs to take security interests in their Cleared Swaps

Customers' Cleared Swaps Customer Accounts in support of other

positions held by such customers at the FCM, or for other entities

(including affiliates of FCMs) to take such security interests in

support of financing the Cleared Swaps Customer's margin obligations.

MFA asked the Commission to ensure that Cleared Swaps Customers are

able to grant liens on Cleared Swaps Customer Collateral (subordinate

to a DCO's rights) to be able to continue entering into cross-product,

and other multilateral, netting agreements. MFA also argued that the

Commission should either (i) modify proposed regulation 22.2(d)(2) to

limit application of the rule to ``prohibiting an FCM's creditors from

obtaining a lien on [Cleared Swaps Customer Collateral]'' or (ii)

clarify in the final rule release or in interpretive guidance that the

language of proposed regulation 22.2(d) is not intended to limit a

Cleared Swaps Customer's ability ``to grant liens on entitlements to

cleared swap positions and related collateral as contemplated by UCC 9-

102(14), 102(15), 9-102(16), 9-102(17), 9-102(49);'' provided such lien

does not impair a DCO's first priority interests to such

collateral.\145\

---------------------------------------------------------------------------

\144\ ISDA at 4-5.

\145\ See MFA at 5-6.

---------------------------------------------------------------------------

As explained above, ``excess'' collateral refers to the collateral

that a Cleared Swaps Customer deposits with an FCM or DCO that is more

than the amount required by the FCM or DCO to margin such customer's

Cleared Swaps portfolio. Since the ``excess'' collateral belongs to the

Cleared Swaps Customer, and is not required by the FCM or DCO, it is

entirely proper for the Cleared Swaps Customer to manage the

collateral. The Cleared Swaps Customer may manage ``excess'' collateral

by giving instructions to the FCM to,

[[Page 6352]]

among other things, transfer such collateral from one account (e.g., a

Cleared Swaps Customer Account) to another account (e.g., a futures

account).\146\ However, it is less clear how collateral that is not

``excess''--namely, collateral margining cleared positions (for which

the counterparty is the DCO, through the FCM)--can also be used to

margin uncleared positions (for which the counterparty is, by

definition, other than a DCO). Accordingly, while the Commission

supports the benefits of portfolio margining, the Commission does not

believe it would be prudent to permit collateral margining cleared

positions to simultaneously be used to margin uncleared positions.

---------------------------------------------------------------------------

\146\ Regulation Part 22 creates the presumption that all money,

securities, and other property deposited in a Cleared Swaps Customer

Account constitutes Cleared Swaps Customer Collateral. Therefore, in

order for a Cleared Swaps Customer to use ``excess'' collateral to

margin, e.g., uncleared swaps, such customer must direct the

transfer of such collateral from the Cleared Swaps Customer Account.

---------------------------------------------------------------------------

In addition, the Commission clarifies that an FCM may not, under

any circumstances, grant a lien to any person (other than to a DCO) on

its Cleared Swaps Customer Account, or on the FCM's residual interest

in its Cleared Swaps Customer Account. On the other hand, a Cleared

Swaps Customer may grant a lien on the Cleared Swaps Customer's

individual cleared swaps account (an ``FCM customer account'') that is

held and maintained at the Cleared Swaps Customer's FCM.\147\ The

Commission notes that by permitting a Cleared Swaps Customer to grant a

lien on that Cleared Swaps Customer's FCM customer account, an FCM is

not permitting the grant of a lien on Cleared Swaps Customer

Collateral. Furthermore, the Commission confirms that regulation

22.2(d) permits (i) FCMs to take a security interest in a Cleared Swaps

Customer's FCM customer account in support of other positions held by

such customer at the FCM, and (ii) other entities (including affiliates

of FCMs) to take a security interest in a Cleared Swaps Customer's FCM

customer account in support of financing the Cleared Swaps Customer's

margin obligations.

---------------------------------------------------------------------------

\147\ An FCM customer account is an account maintained by the

FCM on behalf of a specific Cleared Swaps Customer that holds assets

provided by that Cleared Swaps Customer, or other assets of

equivalent value, that are not currently posted with the DCO to

support swaps positions cleared by the FCM on behalf of such Cleared

Swaps Customer. Typically, an FCM customer account constitutes a

notation in the books and records of the FCM, and not a separate

account at a depository. For a more detailed discussion of FCM

customer accounts, see the discussion in section I.B.5.

---------------------------------------------------------------------------

5. Exceptions

Regulation 22.2(e) proposed certain exceptions to the

abovementioned requirements and limitations. Specifically, proposed

regulation 22.2(e)(1) allowed an FCM to invest Cleared Swaps Customer

Collateral in accordance with regulation 1.25, as such regulation may

be amended from time to time. Proposed regulation 22.2(e)(2) permitted

an FCM to withdraw Cleared Swaps Customer Collateral for such purposes

as meeting margin calls at a DCO or a Collecting FCM, or to meet

charges lawfully accruing in connection with a cleared swap, such as

brokerage or storage charges. Proposed regulation 22.2(e)(3) permitted

an FCM (i) to place its own property in an FCM Physical Location or

(ii) to deposit its own property in a Cleared Swaps Customer

Account.\148\ Finally, as proposed, regulation 22.2(e)(4) clarified

that, if an FCM places or deposits its own property in an FCM Physical

Location or a Cleared Swaps Customer Account, as applicable, then that

property becomes Cleared Swaps Customer Collateral. However, an FCM

would be permitted to retain a residual financial interest in property

in excess of that necessary.

---------------------------------------------------------------------------

\148\ Regulation 22.2(e)(3) proposes to permit an FCM to deposit

only those securities that are unencumbered and are of the types

specified in regulation 1.25. Such proposal accords with regulation

1.23. See regulation 1.23. The Commission notes, however, that this

proposal does not, and is not meant to, require a DCO to accept all

of the types of securities or other property specified in regulation

1.25.

---------------------------------------------------------------------------

SIFMA and Vanguard argued that the Commission should require an FCM

to identify when it has used its own capital to meet a Cleared Swap

Customer's margin obligation and whether such capital can be used by a

DCO to cure a defaulting Cleared Swap Customer's margin

obligations.\149\ To address this comment, the Commission is amending

regulation 22.2(e)(3) to distinguish between (a) cases where an FCM

uses its own capital to cure a Cleared Swaps Customer's undermargined

or deficit account and (b) cases where an FCM uses its own capital to

create a ``buffer'' in the Cleared Swaps Customer Account. The

Commission notes that in case (a), the FCM has, in essence, provided an

advance to the Cleared Swaps Customer, and the DCO should be able to

use such collateral to meet a default by that Cleared Swaps Customer to

the same extent as if that Cleared Swaps Customer provided the

collateral. However, in case (b) the FCM has provided collateral that

does not belong to any specific Cleared Swaps Customer, and thus there

is no reason to restrict the use of that collateral to any specific

Cleared Swaps Customer. The Commission also notes that, to the extent

the DCO permits the FCM to post ``excess'' collateral, the DCO must,

through its own rules, require that the FCM separately account for the

separately identified ``buffer collateral'' (which originated from the

FCM's own capital) and the collateral attributed (at the DCO) to the

FCM's Cleared Swaps Customers (which belongs to those customers).

---------------------------------------------------------------------------

\149\ See SIFMA at 10; and Vanguard at 7.

---------------------------------------------------------------------------

ISDA noted that the use of ``such'' in regulation 22.2(e)(4)(ii) is

ambiguous and could imply that an FCM has a residual interest only in

the particular account (i.e., cash versus securities) into which it has

deposited property. ISDA argued that this might cause unintended

consequences if the customer deposits a security and the FCM, faced

with a need to advance variation margin on behalf such customer in

cash, does not liquidate the security but rather deposits cash secured

by that security. ISDA suggested that the Commission clarify the

language by making clear that the FCM has a residual interest in all

property in Cleared Swaps Customer Accounts in excess of that required

by the regulation 22.2(f)(4) segregation requirement.\150\ In response,

the Commission clarifies that an FCM has a residual interest in all

property in Cleared Swaps Customer Accounts in excess of that required

by the regulation 22.2(f)(4) segregation requirements.

---------------------------------------------------------------------------

\150\ See ISDA at 8-9.

---------------------------------------------------------------------------

e. Requirements As to Amount

As proposed, regulation 22.2(f) set forth an explicit calculation

for the amount of Cleared Swaps Customer Collateral that an FCM must

maintain in segregation, which did not materially differ in the Form 1-

FR-FCM from the calculation for ``customer funds'' of futures

customers. First, proposed regulation 22.2(f) defined ``account'' to

reference an FCM's books and records pertaining to the Cleared Swaps

Customer Collateral of a particular Cleared Swaps Customer. Second,

proposed regulation 22.2(f) required an FCM to reflect in its account

for each Cleared Swaps Customer the market value of any Cleared Swaps

Collateral that it receives from such customer, as adjusted for:

Any uses that proposed regulation 22.2(d) permits;

Any accruals or losses on investments permitted by

proposed regulation 22.2(e) that, pursuant to the applicable FCM

customer agreement,

[[Page 6353]]

are creditable or chargeable to such Cleared Swaps Customer;

Any charges lawfully accruing to the Cleared Swaps

Customer, including any commission, brokerage fee, interest, tax, or

storage fee; and

Any appropriately authorized distribution or transfer of

the Cleared Swaps Collateral.

Third, proposed regulation 22.2(f) categorized accounts of Cleared

Swaps Customers as having credit or debit balances. Accounts where the

market value of Cleared Swaps Customer Collateral is positive after

adjustments have credit balances. Conversely, accounts where the market

value of Cleared Swaps Customer Collateral is negative after

adjustments have debit balances. Fourth, proposed regulation 22.2(f)

required an FCM to maintain in segregation, in its FCM Physical

Location and/or its Cleared Swaps Customer Accounts at Permitted

Depositories, an amount equal to the sum of any credit balances that

Cleared Swaps Customers have in their accounts, excluding from such sum

any debit balances that Cleared Swaps Customers have in their accounts

(the ``Collateral Requirement''). Finally, regulation 22.2(f) proposed

an exception to the exclusion of debit balances. Specifically, to the

extent that a Cleared Swaps Customer deposited ``readily marketable

securities'' with the FCM to secure a debit balance in its account,

then the FCM must include such balance in the Collateral Requirement.

``Readily marketable'' was defined as having a ``ready market'' as such

latter term is defined in rule 15c3-1(c)(11) of the Securities and

Exchange Commission (Sec. 241.15c3-1(c)(11) of this title). Proposed

regulation 22.2(f) deemed a debit balance ``secured'' only if the FCM

maintains a security interest in the ``readily marketable securities,''

and holds a written authorization to liquidate such securities in its

discretion. To determine the amount of the debit balance that the FCM

must include in the Collateral Requirement, proposed regulation 22.2(f)

required the FCM (i) to determine the market value of such securities,

and (ii) to reduce such market value by applicable percentage

deductions (i.e., ``securities haircuts'') as set forth in rule 15c3-

1(c)(2)(vi) of the Securities and Exchange Commission. The FCM would

include in the Collateral Requirement that portion of the debit

balance, not exceeding 100 percent, which is secured by such reduced

market value. The Commission requested comment on the Collateral

Requirement proposed in regulation 22.2(f). Specifically, the

Commission requested comment on whether the explicit calculation of

such Collateral Requirement materially differs from the implicit

calculation in the Part 1 Provisions for segregated ``customer funds''

of futures customers.

ISDA expressed concern that the definition of Cleared Swaps

Customer Collateral may sweep in investment returns, which may be

inconsistent with regulation 22.10 that allows DCOs and FCMs to keep

investment returns unless otherwise agreed and regulation

22.2(f)(2)(ii) that refers to investment returns creditable to a

customer by agreement.\151\ FIA asked the Commission to clarify whether

the definition of Cleared Swaps Customer Collateral included the

interest earned on investments of customer funds, which FCMs have

traditionally been permitted to retain.\152\ In addition, FIA stated

that because an FCM is required to include accruals or losses on

investments of customer collateral under proposed regulation 22.3, the

provision appears to state that customers can agree to assume all or a

portion of the losses incurred in connection with the investment of

customer collateral. FIA ``does not believe that a customer may agree

to share in losses incurred in connection with investments under Rule

1.25.'' \153\ The Commission confirms that investment returns are

includable in Cleared Swaps Customer Collateral only to the extent

creditable pursuant to the customer agreement. As such, the Commission

is deleting the words ``or losses'' and ``or chargeable,'' from

regulation Sec. 22.2(f)(2)(ii). To be clear, Cleared Swaps Customers

are not responsible for losses on investments made pursuant to, and in

accordance with, regulation 1.25.

---------------------------------------------------------------------------

\151\ ISDA at 6-7.

\152\ See FIA at 7-8 & nn. 25-30.

\153\ The FIA cited to a number of cases where courts have

stated that ``Congress intended that futures commission merchants be

entitled to any and all interest on their investment of customer

margin funds.'' See id. at n. 29 (citing Marchese v. Shearson Hayden

Stone, Inc. 644 F.Supp. 1381 (C.D. Cal. 1986), aff'd, 822 F.2d 876

(9th Cir. 1987); Craig v. Refco, 624 F.Supp 944 (N.D. Ill. 1983),

aff'd. 816 F.2d 347 (7th Cir. 1987) (confirming that ``the FCM, not

the customer, bears the risk of any decline in the value of

investments purchased with customer funds''); and Bibbo v. Dean

Witter Reynolds, Inc., 151 F.3d 559 (6th Cir. 1998). See also id. at

8-9 & n. 31.

---------------------------------------------------------------------------

AII requested that the Commission ``ensure that swaps customers may

direct the investments in which initial margin is invested, as is done

today through bilateral agreements with dealer counterparties.'' \154\

While Cleared Swaps Customers in the Cleared Swaps Customer Account

Class would share in Investment Risk, the Commission notes that these

comments are beyond the limited scope of these regulations, and it will

consider how to address them outside of this rulemaking. However,

nothing contained herein would limit an FCM from adopting as a policy--

and commit itself by contract with its customers--to further limit its

investments of customer funds for all customers of one or more account

classes (i.e., futures, foreign futures, Cleared Swaps).\155\

---------------------------------------------------------------------------

\154\ AII at 4. The term ``initial margin'' is defined in

regulation 1.3(ccc) and means ``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.'' The term ``variation margin'' is

defined in regulation 1.3(fff) and means ``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.''

\155\ Because of pro rata distribution, limiting the investments

of customer funds attributable to individual customers would be

insufficient to protect such customers from Investment Risk

attributable to the investment of customer funds attributable to

other customers within the same account class.

---------------------------------------------------------------------------

FIA argued that the calculation requirements set forth in

regulation 22.2 pose an excessive burden because an FCM cannot offset

negative and positive balances in different currencies. Thus, if a

Cleared Swaps Customer has a positive balance in USD but a negative

balance in Euro, the FCM would need to deposit its own capital to cover

the negative balance in Euro without respect to the Cleared Swaps

Customer's positive balance in USD. FIA noted that though proposed

regulation 22.2(g) mirrors existing regulation 1.32(a), there is an

important difference in circumstances that warrants different treatment

of the two cases: while relatively few futures contracts traded on U.S.

DCMs are denominated in a foreign currency, a significant number of

Cleared Swaps are expected to be denominated in foreign

currencies.\156\ In response, the Commission recognizes the concerns

expressed by the FIA. However, efforts to provide that an FCM may, in

making its segregation calculations, include a debit balance to the

extent such balance is secured by funds in other currencies, subject to

appropriate haircuts, are beyond the limited scope of this rulemaking.

The Commission will, therefore, consider how to address these issues

outside of this rulemaking.

---------------------------------------------------------------------------

\156\ See FIA at 10-11.

---------------------------------------------------------------------------

f. Segregated Account; Daily Computation and Record

Proposed regulation 22.2(g) required an FCM to compute, as of the

close of

[[Page 6354]]

each business day, on a currency-by-currency basis:

The aggregate market value of the Cleared Swaps Customer

Collateral in all FCM Physical Locations and all Cleared Swaps Customer

Accounts at Permitted Depositories (the ``Collateral Value'');

The Collateral Requirement; and

The amount of the residual financial interest that the FCM

holds in such Cleared Swaps Customer Collateral (i.e., the difference

between the Collateral Value and the Collateral Requirement).

Proposed regulation 22.2(g) also required the FCM to complete the

abovementioned computation prior to noon\157\ on the next business day,

and to keep all computations, together with supporting data, in

accordance with regulation 1.31.

---------------------------------------------------------------------------

\157\ ``Noon'' refers to noon in the time zone where the FCM's

principal office is located.

---------------------------------------------------------------------------

The Commission did not receive any comments on regulation 22.2(g)

and is therefore adopting regulation 22.2(g) as proposed.

C. Regulation 22.3--Derivatives Clearing Organizations: Treatment of

Cleared Swaps Customer Collateral

Regulation 22.3 proposed requirements for DCO treatment of Cleared

Swaps Customer Collateral from FCMs, as well as the associated Cleared

Swaps. Specifically, regulation 22.3(a) required a DCO to treat Cleared

Swaps Customer Collateral deposited by an FCM as belonging to the

Cleared Swaps Customers of that FCM and not other persons. Moreover,

regulation 22.3(b) required DCOs to segregate all Cleared Swaps

Customer Collateral either with itself or a Permitted Depository.

Proposed regulation 22.3(c) allowed a DCO to commingle the Cleared

Swaps Customer Collateral that it receives from multiple FCMs on behalf

of their Cleared Swaps Customers, while prohibiting the DCO from

commingling Cleared Swaps Customer Collateral with (i) The money,

securities, or other property belonging to the DCO, (ii) the money,

securities, or other property belonging to any FCM, or (iii) other

categories of funds that it receives from an FCM on behalf of

Customers, including ``customer funds'' (as regulation 1.3 defines such

term) for futures contracts or the ``foreign futures or foreign options

secured amount'' (as regulation 1.3 defines such term), except as

permitted by a Commission rule, regulation or order (or by a

derivatives clearing organization rule approved pursuant to regulation

39.15(b)(2)).\158\ Regulations 22.3(d) and (e), on the other hand,

proposed certain exceptions to the abovementioned requirements and

limitations. Regulation 22.3(d) as proposed (i) allowed a DCO to place

money, securities, or other property belonging to an FCM in a DCO

Physical Location, or deposit such money, securities, or other property

in the relevant Cleared Swaps Customer Account, pursuant to an

instruction from the FCM, and (ii) to permit FCM withdrawals of money,

securities, or other property from a DCO Physical Location or Cleared

Swaps Customer Account. Proposed regulation 22.3(d) is being deleted

consistent with the changes to regulation 22.2(e)(3), which require

delineation between cases where an FCM posts collateral on behalf of a

particular customer and cases where an FCM posts collateral on behalf

of its customer account in general. Proposed regulation 22.3(e) (now,

regulation 22.3(d)) allowed a DCO to invest Cleared Swaps Customer

Collateral in accordance with regulation 1.25, as such regulation may

be amended from time to time.

---------------------------------------------------------------------------

\158\ See 76 FR at 69390-92.

---------------------------------------------------------------------------

The Commission requested comment on what, if any, changes to

proposed regulation 22.3 may be appropriate to accommodate the

possibility that a depository registered with either domestic or

foreign banking regulators may seek to become a DCO, and that such

depository may seek to hold Cleared Swaps Customer Collateral, as well

as other forms of customer property. Specifically, the Commission

requested comment on (i) whether a DCO that is also a registered

depository should be permitted to hold both tangible and intangible

forms of Cleared Swaps Customer Collateral from FCMs itself, (ii) the

challenges that a DCO holding tangible and intangible forms of Cleared

Swaps Customer Collateral pose to the protection (including effective

segregation) of Cleared Swaps Customer Collateral (as well as other

forms of customer property), and (iii) how any challenges identified in

(ii) might be addressed.

ISDA stated that the definition of Cleared Swaps Customer

Collateral does not distinguish between initial and variation margin.

Both FIA and ISDA expressed concerns that, if variation margin is

considered as collateral, regulations 22.3(a) and 22.3(b) would prevent

a DCO from taking Cleared Swaps Customer Collateral received from one

FCM as variation margin ``and transferring it to an FCM whose customers

are on the opposite side of the relevant trades.'' \159\ FIA asked the

Commission to confirm that a DCO may pass variation margin to the

receiving party ``if such variation is characterized as collateral and

not as a settlement payment by the parties to the swap.'' \160\

Similarly, ICE requested clarification that a DCO that has received

``variation or mark-to-market margin (as opposed to initial margin)''

may be used to settle variation for offsetting swaps. ICE argues that

without an amendment permitting DCOs to treat ``variation or mark-to-

market'' margin as a pass-through, ``clearinghouses could effectively

be prohibited from clearing much of the OTC swaps market as it

transacts today.'' \161\ The Commission is adopting regulation 22.3 as

proposed. The Commission recognizes the concerns expressed by

commenters and confirms that regulation 22.3 is intended to permit DCOs

to use variation margin collected from Cleared Swaps Customers to pay

variation margin to, among others, Cleared Swaps Customers.

---------------------------------------------------------------------------

\159\ ISDA at 5. See FIA at 9.

\160\ FIA at 9 (emphasis supplied).

\161\ ICE at 10.

---------------------------------------------------------------------------

ISDA also observed that a variation margin payment ``may be

considered as a settlement payment--a realized profit/loss--as in the

case of listed futures; or as collateralizing current exposure, a

payment representing unrealized profit/loss, as in the case of

bilateral (uncleared) swap contracts.'' \162\ ISDA argued that Cleared

Swaps Customers would be subject to a ``mark-to-market'' tax regime,

paying ordinary income on swap returns, if a DCO were to treat as a

contract settlement, a variation margin payment made with respect to a

Cleared Swap.\163\ Accordingly, ISDA noted that recording daily mark-

to-market income on swaps would poorly match the periodic realized

coupon income on the bonds hedged by such swaps.\164\ Similarly, FIA

noted that it has ``been advised that, because cleared swaps are not

subject to section 1256 of the Internal Revenue Code, the

characterization of such payments as settlement payments may have tax

consequences that may impair the ability of certain financial end-users

* * * to enter into cleared swaps transactions.'' \165\ ISDA suggested

that Congress did not intend to change the tax treatment of swaps,

because section 1601 of the Dodd-Frank Act explicitly exempts Cleared

Swaps from being treated as ``section 1256 contracts.'' \166\ As such,

ISDA requested that the

[[Page 6355]]

Commission clarify that DCOs can treat variation margin as collateral

rather than settlement payments.\167\ These comments are beyond the

limited scope of these regulations and outside the scope of the

Commission's authority. The Commission does not take any view on the

proper treatment of variation margin associated with swaps for tax

purposes. Rather, the Commission believes that the Internal Revenue

Service is the regulatory body best equipped to address the identified

taxation issue.

---------------------------------------------------------------------------

\162\ ISDA at 5.

\163\ Id.

\164\ Id. at 6.

\165\ FIA at 9, n. 33.

\166\ ISDA at 6.

\167\ Id.

---------------------------------------------------------------------------

D. Regulation 22.4--Futures Commission Merchants and Derivatives

Clearing Organizations: Permitted Depositories

Proposed regulation 22.4 listed depositories permitted to hold

Cleared Swaps Customer Collateral (the ``Permitted

Depositories''),\168\ and noted that an FCM could serve as a Permitted

Depository, but only if it is a Collecting FCM carrying the Cleared

Swaps (and related Cleared Swaps Customer Collateral) of a Depositing

FCM. The Commission sought public comment regarding the appropriateness

of allowing an FCM to serve as a Permitted Depository only if the FCM

is a ``Collecting FCM.'' The Commission did not receive any comments in

response thereto or on regulation 22.4 generally. The Commission is,

therefore, adopting regulation 22.4 as proposed.

---------------------------------------------------------------------------

\168\ As proposed, for a DCO or an FCM, a Permitted Depository

must (subject to regulation 22.9) be: (i) A bank located in the

United States; (ii) a trust company located in the United States; or

(iii) a DCO.

---------------------------------------------------------------------------

E. Regulation 22.5--Futures Commission Merchants and Derivatives

Clearing Organizations: Written Acknowledgement

As proposed, regulation 22.5 required a DCO or FCM to obtain

written acknowledgement letters from depositories (including, by

implication, depositories located outside the United States) before

opening a Cleared Swaps Customer Account.\169\ Proposed regulation 22.5

also set forth substantive requirements for such acknowledgement

letter. The Commission requested comment on the appropriateness of the

following: (i) the addition of regulation 1.20 (as the Commission may

choose to amend such regulation) in proposed regulation 22.5, and (ii)

the adaptation of any form letter that the Commission may choose to

promulgate under regulation 1.20 to accommodate Cleared Swaps Customer

Collateral under regulation 22.5.

---------------------------------------------------------------------------

\169\ The function of a written acknowledgment letter is to

ensure and provide evidence that a potential Permitted Depository is

aware that (i) The FCM or DCO is opening a Cleared Swaps Customer

Account, (ii) the funds deposited in such account constitute Cleared

Swaps Customer Collateral, and (iii) such Cleared Swaps Customer

Collateral is subject to the requirements of section 4d(f) of the

CEA and Part 22 (when finalized).

---------------------------------------------------------------------------

ISDA stated that an acknowledgement letter from a foreign

depository ``may be difficult to get and of little purpose, if

obtained'' because the letter would not alter the fact that the foreign

depository would be subject to local bankruptcy jurisdiction.\170\ The

Commission is adopting regulation 22.5 as proposed. The Commission

notes that under regulation 1.49(d)(1) depositories in the futures

market must provide the depositing FCM or DCO with the appropriate

written acknowledgements required under regulations 1.20 and 1.26. The

requirements set forth in regulation 22.5 parallel the requirements set

forth under regulations 1.20 and 1.26. The Commission has no reason to

believe that written acknowledgements from foreign depositories would

be any more difficult to obtain in the swaps market than they would be

in the futures market. Moreover, the written acknowledgment is intended

to clearly establish the commercial expectations of the parties before

a bankruptcy or insolvency event. In addition, the written

acknowledgements could aid a bankruptcy judge's or trustee's allocation

of assets to the extent a bankruptcy court or other insolvency regime

finds the commercial expectations of the parties to be helpful

information.

---------------------------------------------------------------------------

\170\ ISDA at 8.

---------------------------------------------------------------------------

F. Regulation 22.6--Futures Commission Merchants and Derivatives

Clearing Organizations: Naming of Cleared Swaps Customer Accounts

Proposed regulation 22.6 required an FCM or DCO to ensure that the

name of each Cleared Swaps Customer Account that it maintains with a

Permitted Depository (i) clearly identifies the account as a ``Cleared

Swaps Customer Account,'' and (ii) clearly indicates that the

collateral therein is ``Cleared Swaps Customer Collateral'' subject to

segregation in accordance with section 4d(f) of the CEA and Part 22.

The Commission did not receive any comments on this regulation and is,

therefore, adopting regulation 22.6 as proposed.

G. Regulation 22.7--Permitted Depositories: Treatment of Cleared Swaps

Customer Collateral

As proposed, under regulation 22.7 a Permitted Depository is (i)

required to treat all funds in a Cleared Swaps Customer Account as

Cleared Swaps Customer Collateral and (ii) prohibited from holding,

disposing of, or using any Cleared Swaps Customer Collateral as

belonging to any person other than the Cleared Swaps Customers of the

FCM maintaining such Cleared Swaps Customer Account or the Cleared

Swaps Customers of the FCMs for which the DCO maintains such Cleared

Swaps Customer Account. The Commission did not receive any comments on

this proposed rule and is adopting regulation 22.7 as proposed.

H. Regulation 22.8--Situs of Cleared Swaps Customer Accounts

1. Proposed Requirements

Proposed regulation 22.8 required (i) each FCM to designate the

United States as the site (i.e., the legal situs) of the FCM Physical

Location and the ``account'' (as regulation 22.2(f)(1) defines such

term) that the FCM maintains for each Cleared Swaps Customer, and (ii)

each DCO to designate the United States as the site (i.e., the legal

situs) of the DCO Physical Location and the Cleared Swaps Customer

Account that the DCO maintains on its books and records for the Cleared

Swaps Customers of each FCM. The Commission sought comment on whether,

as proposed, regulation 22.8 ensured that Cleared Swaps Customer

Collateral be treated in accordance with the U.S. Bankruptcy Code, to

the extent possible, and if it did not achieve this purpose, what

alternatives the Commission should consider to achieve such purpose.

Additionally, the Commission requested comment on the benefits and

costs of proposed regulation 22.8, as well as any alternatives.

NGX states that the requirement of U.S. situs for a customer

account may increase legal uncertainty with respect to the insolvency

regime that would apply to a bankruptcy, and such uncertainty may slow

down resolution of a clearing participant's default and bankruptcy.

Moreover, NGX argues that ``it is unclear how the U.S. account situs

requirement will interact with the choice of law provision'' \171\ of a

non-U.S. DCO that chooses to apply its home country insolvency regime.

In light of this uncertainty, NGX recommends that the Commission adopt

the approach it proposed for foreign non-U.S. clearinghouses seeking

DCO registration; namely, that the DCO registration application include

a ``memorandum of local law analyzing

[[Page 6356]]

insolvency issues in the [relevant] foreign jurisdiction * * * and

describing how the applicant has addressed any conflict of law issues,

which jurisdiction's law is intended to apply to each aspect of the

applicant's clearing house's operations, and the enforceability of the

choice of law in the relevant jurisdictions.'' \172\ However, NGX

requested that the Commission provide greater guidance regarding the

operation of the proposed rule if it opts to retain the account situs

requirements, specifically making clear that ``a DCO choice of law rule

should be able to include both choice of forum as well as the

substantive law to be applied'' with respect to a clearinghouse's

insolvency and the remedies available to a clearinghouse in the event

of a clearing member's default or insolvency.\173\

---------------------------------------------------------------------------

\171\ NGX at 4.

\172\ Id. at 5 (citing to the ``Risk Management Requirements for

Derivative Clearing Organizations,'' 76 FR. 3698, 3742, Jan. 20,

2011).

\173\ Id. at 4-5.

---------------------------------------------------------------------------

The Commission notes that, in the event of an FCM's bankruptcy, the

legal situs provision is intended to make clear that the insolvency

regime that will apply to the customers of the FCM is the U.S.

insolvency regime embodied in Subchapter IV of Chapter 7 of the U.S.

Bankruptcy Code and Part 190 of the Commission's regulations.\174\

While a DCO is free to make the choice that local law applies to all

other aspects of a DCO's relationships with its members, the Commission

has historically required, and intends to continue requiring, that

customers of FCMs in bankruptcy be treated in accordance with U.S.

bankruptcy law.

---------------------------------------------------------------------------

\174\ As discussed in the NPRM, the Commission does not intend

for regulation 22.8 to affect the actual location in which an FCM or

DCO may keep Cleared Swaps Customer Collateral. Though the legal

situs of an ``account'' (as regulation 22.2(f)(1) defines the term)

and a Cleared Swaps Customer Account must be in the United States,

the Commission recognizes that Cleared Swaps Customer Collateral

may, in actuality, be kept outside the United States in certain

circumstances. However, the Commission notes that regulation 22.8

does not override other Commission regulations regarding the

location of customer funds. Specifically, regulation 22.9, which

applies regulation 1.49 to Cleared Swaps, requires, among other

things, FCMs and DCOs to hold, in a segregated account on behalf of

Cleared Swaps Customers, sufficient United States dollars in the

United States to meet all United States dollar obligations.

---------------------------------------------------------------------------

I. Regulation 22.9--Denomination of Cleared Swaps Customer Collateral

and Location of Depositories

Proposed regulation 22.9 applies regulation 1.49 to Cleared Swaps

Customer Collateral. Regulation 1.49 sets forth rules determining the

permitted denominations of customer funds (i.e., permitted currencies

and amounts in each currency), permitted locations of customer funds

(i.e., permitted countries and amounts in each country), and

qualifications that entities outside of the United States must meet to

become Permitted Depositories (e.g., minimum regulatory capital).

Specifically, regulation 1.49(b)(1)(iii) permits an FCM's obligations

to a customer to be denominated in ``a currency in which funds have

accrued to the customer as a result of trading conducted on a

designated contract market or registered derivatives transaction

execution facility,'' while regulation 1.49(d)(3) requires depositories

that are located outside the United States to be (i) A bank or trust

company that meets certain financial requirements, (ii) an FCM, or

(iii) a DCO. In addition, regulation 22.9 proposed to allow an FCM to

serve as a Permitted Depository only if the FCM was a Collecting FCM

carrying the Cleared Swaps, and associated Cleared Swaps Customer

Collateral, for the Cleared Swaps Customers of a Depositing FCM.

ISDA stated that regulation 1.49(b)(1)(iii) should be amended to

reflect the wider scope of execution methods available for Cleared

Swaps.\175\ In response, the Commission is amending regulation 22.9 to

allow the FCM's obligations to a Cleared Swaps Customer to be

denominated in the currency in which funds have accrued to the Cleared

Swaps Customer as a result of a Cleared Swap carried through such FCM,

to the extent of such accruals. However, the Commission notes that it

cannot amend regulation 1.49(b)(1)(iii) at this time because such an

amendment was not part of the NPRM.

---------------------------------------------------------------------------

\175\ ISDA at 8.

---------------------------------------------------------------------------

ISDA also requested that the Commission make plain that central

securities depositories are acceptable depositories.\176\ Similarly,

FIA argued that Euroclear, a central securities depository for Euro-

denominated securities, should be permitted to act as a depository

under Commission regulations.\177\ The Commission notes that although

the notion of a central securities depository as an acceptable

depository for securities has considerable intuitive appeal, CEA Sec.

4d(f)(3)(A)(i) limits acceptable depositories for commingled funds to

``any bank or trust company or * * * a derivatives clearing

organization.'' \178\ Because these comments are beyond the limited

scope of these regulations, the Commission will consider how to address

them outside of this rulemaking.

---------------------------------------------------------------------------

\176\ Id.

\177\ See FIA at 11.

\178\ Section 4d(f)(3)(A)(ii) of the CEA permits customer

property to be used to margin a cleared swap with a member of a DCO,

i.e., a collecting FCM. However, the Commission notes that a foreign

bank that meets the requirements of regulation 1.49(d)(3)(i) is a

good depository, and such a foreign bank may itself hold foreign

securities in an account at a foreign central securities depository.

---------------------------------------------------------------------------

Finally, FHLB argued that ``customer collateral should only be held

in banks or trust companies located in the United States.'' \179\ The

Commission does not believe it would be appropriate to address this

comment at this time, as it is beyond the scope of this rulemaking.

---------------------------------------------------------------------------

\179\ FHLB at 9.

---------------------------------------------------------------------------

J. Regulation 22.10--Application of Other Regulatory Provisions

Proposed regulation 22.10 applies 1.27 (Record of

investments),\180\ 1.28 (Appraisal of obligations purchased with

customer funds),\181\ 1.29 (Increment or interest resulting from

investment of customer funds),\182\ and 1.30 (Loans by futures

commission merchants; treatment of proceeds) \183\ to Cleared Swaps

Customers and Cleared Swaps Customer Collateral.

---------------------------------------------------------------------------

\180\ Regulation 1.27 requires FCMs and DCOs investing customer

funds to maintain specified records concerning such investments.

\181\ Regulation 1.28 requires FCMs investing customer funds to

record and report such investment at no greater than market value.

\182\ Regulation 1.29 permits FCMs and DCOs investing customer

funds to receive and retain any increment or interest thereon.

\183\ Regulation 1.30 permits FCMs to loan their own funds to

customers on a secured basis, and to repledge or sell such security

pursuant to agreement with such customers. However, regulation 1.30

does make clear that the proceeds of such loans, when used to

purchase, margin, guarantee, or secure futures contracts, shall be

treated as customer funds.

---------------------------------------------------------------------------

While several commenters cited regulation 22.10, they did so in the

context of discussion of other regulations. Because the Commission did

not receive any comments regarding the substance of regulation 22.10,

it is adopting regulation 22.10 as proposed.

K. Regulation 22.11--Information To Be Provided Regarding Customers and

Their Cleared Swaps

Proposed regulation 22.11 required that (i) each Depositing FCM

provide to its Collecting FCM and (ii) each FCM member provide to its

DCO, in each case, information sufficient to identify Cleared Swaps

Customers on a one-time basis, and information sufficient to identify

the portfolio of rights and obligations belonging to such customers

with respect to their Cleared Swaps ``at least once each business

day.'' If a Depositing FCM or FCM member also serves as a Collecting

FCM, then it must

[[Page 6357]]

provide the specified information with respect to each individual

Cleared Swaps Customer for which it acts (on behalf of a Depositing

FCM) as a Collecting FCM. As proposed, regulation 22.11 also held the

DCO responsible for taking appropriate steps to confirm that the

information that it receives is accurate and complete, and ensure that

the information is being produced on a timely basis. However, because

the DCO may not have a direct relationship with, e.g., a Depositing

FCM, the regulation required the DCO to take ``appropriate steps'' to

ensure that its FCM members enter into suitable arrangements with,

e.g., a Depositing FCM to verify the accuracy and timeliness of

information. The Commission requested comment on whether (i) The

proposed requirement in regulation 22.11 for a Depositing FCM to

provide a Collecting FCM with information sufficient to identify its

Cleared Swaps Customers raises any competitive concerns, (ii) such

concerns, if any, could be resolved if the identities of the Cleared

Swaps Customers are coded, with the DCO, but not the Collecting FCM,

receiving a copy of such code, and (iii) other methods were available

to resolve any such concerns.

ISDA requested that the Commission further clarify the language of

regulation 22.11 to make explicit that an FCM must provide identifying

information to the DCO or to the Collecting FCM the first time the FCM

intermediates a swap for a Cleared Swaps Customer with the particular

relevant DCO or collecting FCM.\184\ In response, the Commission is

amending the language of regulation 22.11 to make clear that an FCM

must provide identifying information to a DCO or Collecting FCM the

first time it intermediates a Cleared Swap with that DCO or Collecting

FCM.

---------------------------------------------------------------------------

\184\ See ISDA at 9.

---------------------------------------------------------------------------

In addition, a number of commenters raised concerns regarding the

need for specific recordkeeping and reporting requirements.\185\ These

commenters requested that the Commission mandate reporting and

recordkeeping requirements for DCOs and require DCOs to implement rules

requiring their clearing members to comply with such reporting and

recordkeeping requirements. FHLB argued that, at a minimum, an FCM

should have to identify (i) collateral posted by an individual customer

as cash or securities and (ii) with respect to identifiable securities,

which customer posted such securities.\186\ CME, by contrast, stated

that auditing for accuracy of ``a full breakdown of all forms of

collateral at all levels of clearing for each end customer, allocated

specifically to each DCO * * * will increase costs exponentially.''

\187\ CIEBA, CME, ICE, FHLB, SIFMA, BlackRock, and Vanguard stated that

it is important to be able to ensure that an FCM's books and records

are accurate in order to support implementation of Cleared Swaps

Customer Collateral in bankruptcy. The preferred means of addressing

this problem ranged from increasing recordkeeping and monitoring

burdens on FCMs and DCOs to abandoning the Complete Legal Segregation

Model. On the other hand, CME complained that the phrase ``portfolio of

rights and obligations arising from the Cleared Swaps that such futures

commission merchant intermediates for such customer'' is unclear as to

whether it covers the collateral supporting such positions.\188\ CME

stated that it ``read[s] the proposed regulations as requiring a DCO to

allocate to each non-defaulting customer its specific required margin

only * * *,'' and that it intends to ``allocate to any defaulting

customer the difference between its specific required margin and the

collateral within the DCO's access and control * * * .''\189\

---------------------------------------------------------------------------

\185\ See, e.g., ICI at 5; SIFMA at 8; and FHLB at 4.

\186\ FHLB also argues that this information should be provided

to Cleared Swaps Customers on a daily basis so that they can correct

any discrepancies in the records, which would, in turn, reduce

operational risk. See FHLB at 4.

\187\ CME at 15, n. 30. Cf. FHLB at 3, n. 2 (stating FHLB's

understanding that LCH has the technology necessary to track

individual customer collateral on a real-time basis, but

acknowledging that it is ``not in a position to calculate the costs

associated with such technology.'').

\188\ CME at 6-7.

\189\ Id. at 7 (emphasis in original).

---------------------------------------------------------------------------

AII, SIFMA, and Vanguard requested that the Commission require DCOs

to carefully monitor clearing member compliance with DCO rules,

including through periodic audits, by amending regulation 22.11(e) to

provide specific and concrete examples of the steps a DCO must take to

confirm that information from an FCM is accurate, complete and timely.

In addition, AII, SIFMA, and Vanguard requested that the words

``appropriate steps'' in regulation 22.11(e) be replaced with ``all

steps necessary.'' \190\ CME argued that regulation 22.11 should

specify the contents of the daily FCM report to the DCO,\191\ and that

the Commission should clarify the intent behind the language ``take

additional steps,'' specifically with respect to what the Commission

``intends each DCO to accomplish under the verification requirement.''

\192\

---------------------------------------------------------------------------

\190\ See AII at 3; SIFMA at 8; and Vanguard at 6.

\191\ See CME at 3-4, and 13-15.

\192\ CME at 15.

---------------------------------------------------------------------------

FIA noted that the proposed rule does not require the information

to be provided by any specific time each business day, and recommended

that the Commission specify such a deadline.\193\ Vanguard, SIFMA and

AII also suggested that the Commission consider requiring information

to be provided ``as frequently as necessary'' rather than ``at least

once each business day.'' \194\ Finally, CME stated that it

``presume[d] that the Commission's intention is to continue to treat

omnibus accounts of a foreign broker clearing through an FCM as a

single `customer' for purposes of the requirements of Part 22.''\195\

---------------------------------------------------------------------------

\193\ See FIA at 12. FIA cites to ``Proposed Rule 22.12,'' but

it is regulation Sec. 22.11 that requires FCMs to provide

information to a clearing FCM or DCO.

\194\ AII at 3; SIFMA at 8; and Vanguard at 6-7.

\195\ CME at 8, n. 20.

---------------------------------------------------------------------------

The Commission notes that under the Complete Legal Segregation

Model, DCOs must, in the event of the insolvency of a clearing member

carrying Cleared Swaps Customer positions, either return to the

Trustee, or transfer to another FCM, the value of the collateral

associated with each Cleared Swaps Customer's positions (as adjusted in

accordance with Commission regulations). This requirement corresponds

to the margin required for the Cleared Swaps Customer's swaps cleared

through that DCO, including any individualized surcharge or voluntary

contribution.\196\ Thus, a DCO has no responsibility to monitor the

nature or amount of collateral each Cleared Swaps Customer actually

posts with the FCM, or the provenance of the specific items of

collateral the DCO receives from the FCM. Rather, the DCO should take

the steps appropriate, in the professional judgment of its staff, to

verify that FCM members have and are using systems and appropriate

procedures to track accurately, and to provide to the DCO accurately,

the positions of each customer. Furthermore, the Commission is

clarifying that the responsibilities of a DCO under Part 22 are

analogous to the responsibilities of a DCM under regulation 1.52 with

respect to margin (the calculation of which requires an accurate

accounting of the customer's positions). As noted by one commenter,

FCMs are already subject to DSRO

[[Page 6358]]

audits on an approximately annual basis.\197\

---------------------------------------------------------------------------

\196\ See regulation 22.13(a)(1)(C).

\197\ See CME at 15.

---------------------------------------------------------------------------

At this time, the Commission is not requiring that information be

provided ``as frequently as necessary'' or by a specific time.

Regulation 22.11 requires information to be provided ``at least once a

day,'' thereby permitting DCOs to require by rule the collection of

this information more frequently. If more frequent collection of such

information becomes an industry standard at a later point in time, the

Commission might then consider increasing the frequency of this

reporting requirement. In addition, the Commission notes that a DCO may

set, by rule, the time or times by which such information must be

provided.

Finally, the Commission confirms the presumption ``that the

Commission's intention is to continue to treat omnibus accounts of a

foreign broker clearing through an FCM as a single `customer' for

purposes of the requirements of Part 22.'' \198\ However, to the extent

a foreign broker is required to provide individual protection for swaps

customer collateral under the laws of another jurisdiction, the

Commission intends that the regulations under Part 22 foster compliance

with such other laws.

---------------------------------------------------------------------------

\198\ See id. at 8, n. 20.

---------------------------------------------------------------------------

L. Regulation 22.12--Information To Be Maintained Regarding Cleared

Swaps Customer Collateral

As proposed, regulation 22.12 required DCOs and Collecting FCMs to

use the information provided pursuant to proposed regulation 22.11 to

calculate and record, no less frequently than once each business day,

the amount of collateral required (i) for each relevant Cleared Swaps

Customer (including each such customer of a Depositing FCM), based on

the portfolio of rights and obligations arising from its Cleared Swaps;

and (ii) for all relevant Cleared Swaps Customers.

SIFMA argued that DCOs and FCMs should be required to perform the

calculations specified in regulation 22.12 ``as frequently as

technologically possible'' rather than ``no less frequently than once

each business day.'' \199\ The Commission is adopting regulation 22.12

as proposed. The calculations required by regulation 22.12 are based on

information provided under regulation 22.11, which is sent to the DCOs

and FCMs ``at least once each business day.'' It would be anomalous for

the Commission to require a more frequent calculation of collateral

requirements when the information on which such calculation is based is

only required to be provided once each business day. However, if more

frequent collection of such information becomes an industry standard at

a later point in time, the Commission might then consider requiring

more frequent calculation of collateral requirements by regulation.

---------------------------------------------------------------------------

\199\ SIFMA at 9. See also AII at 3.

---------------------------------------------------------------------------

FIA and ISDA observed that the reference in the NPRM in the

discussion of regulation 22.12 to an advance by the FCM to a Cleared

Swaps Customer as a ``loan'' combined with regulation 22.10, which,

among other things, prohibits an FCM from granting unsecured loans to

customers, could be read to prohibit unsecured short-term advances of

margin funds to Cleared Swaps Customers by FCMs. They asked that the

Commission clarify that unsecured short term advances of margin are

permissible.\200\ The Commission clarifies that, consistent with

current practice, unsecured short term advances of margin are not

considered ``loans'' for purposes of existing regulation 1.30, or new

regulation 22.10. The Commission notes, however, that such advances

should be either promptly repaid or promptly replaced with a secured

loan.

---------------------------------------------------------------------------

\200\ See ISDA at 9; FIA at 11-12.

---------------------------------------------------------------------------

M. Regulation 22.13--Additions to Cleared Swaps Customer Collateral

Regulation 22.13 proposed two tools that DCOs or Collecting FCMs

may use to manage the risk they incur with respect to individual

Cleared Swaps Customers. Because the proposed tools were not intended

to be mandatory or exclusive, the Commission sought comment on how it

could enable DCOs or Collecting FCMs to use other tools to manage such

risk. In addition, proposed regulation 22.13(a) clarified that a DCO or

Collecting FCM could increase the collateral required of a particular

Cleared Swaps Customer or group of such customers, based on an

evaluation of the credit risk posed by such customer(s). The proposed

clarification was not intended to interfere with the right of any FCM

to increase the collateral requirements with respect to any of its

customers, and the Commission requested comment regarding whether a DCO

or a Collecting FCM wished to increase the collateral required for any

reason other than credit risk. Similarly, proposed regulation 22.13(b)

provided that collateral deposited by an FCM that is identified as

collateral in which such FCM has a residual financial interest (i.e.,

the FCM's own funds) may, to the extent of such residual financial

interest, be used by the DCO or Collecting FCM to secure the Cleared

Swaps of any or all Cleared Swaps Customers.

ISDA suggests that the final rule attribute the collateral

deposited by an FCM that is identified as collateral in which such FCM

has a residual financial interest to individual Cleared Swaps Customers

to determine which Cleared Swaps Customers have a credit balance and

which have a debit balance.\201\ The Commission notes that collateral

attributable to an FCM's residual financial interest is, by definition,

not the property of any Cleared Swaps Customer. Accordingly, there is

no customer-protection-based reason to deny a DCO or Collecting FCM the

ability to use such collateral to meet the default of any Cleared Swaps

Customer. In addition, as mentioned above, the Commission is adding a

new section 22.13(c), which states that, subject to certain

requirements, collateral posted by a Cleared Swaps Customer in excess

of the amount required by a DCO (the ``excess collateral'') may be

transmitted by the Cleared Swaps Customer's FCM to the DCO.\202\

---------------------------------------------------------------------------

\201\ See ISDA at 9-10.

\202\ For further detail, see the discussion above in section

IV.A.4. under the definition of ``Cleared Swaps Customer

Collateral.''

---------------------------------------------------------------------------

N. Regulation 22.14--Futures Commission Merchant Failure To Meet a

Customer Margin Call in Full

Proposed regulation 22.14 required a defaulting FCM to transmit to

the DCO or Collecting FCM, as applicable, Cleared Swaps Customer

Collateral on deposit at the FCM for each Cleared Swaps Customer whose

swaps contributed to the call, and the identity and the amount

transmitted on behalf of, each such customer. Regulation 22.14 also

proposed a detailed sequence of events following an FCM's default.

Specifically, proposed regulations 22.14(e) and (f) addressed the issue

of allocation of the loss of value of collateral (also known as

Investment Risk) \203\ despite the application of haircuts. The

Commission sought comment on the proposed allocation of Investment

Risk.

---------------------------------------------------------------------------

\203\ See supra at n. 28.

---------------------------------------------------------------------------

FIA suggested that the regulations make clear that the DCO or

Collecting FCM may reasonably rely on the information provided by the

defaulting FCM (or on information previously provided if the defaulting

FCM does not promptly provide information on the day of the

default).\204\ In response, the Commission is amending regulation 22.14

to add subsection (2) to specifically permit such reliance on

[[Page 6359]]

information provided by a defaulting FCM.

---------------------------------------------------------------------------

\204\ See FIA at 12; SIFMA at 10.

---------------------------------------------------------------------------

Vanguard and SIFMA requested clarification regarding how a DCO

should handle simultaneous defaults in a futures and Cleared Swaps

Customer Account, and how the FCM and DCO resources should be allocated

between the two accounts.\205\ The Commission notes that defaults in

multiple accounts are already addressed in the Commission's regulations

and, in particular, Part 190, which treats account classes separately.

For example, in the event of a default in a futures customer account,

the default would be treated in accordance with the Futures Model, and

the FCM would be permitted to apply all customer collateral to meet

that default and would, after liquidation of positions, return any

remaining customer collateral to the Trustee for distribution as above.

A default in the Cleared Swaps Customer Account, on the other hand,

would be treated in accordance with the Complete Legal Segregation

Model, with remaining positions and collateral either transferred to

another FCM or returned to the Trustee. Thus, swaps customer accounts

and futures customer accounts are treated separately by the DCO, with

balances that are not transferred being returned to the Trustee for

distribution.\206\ The Trustee would distribute customer property,

including collateral received from a DCO, pari passu within each

account class. Any surplus in any account class would be re-distributed

in accordance with regulation 190.08. In addition, the Commission notes

that a separate proprietary account for swaps is not required under

Commission regulations. Thus, a clearing member's own swaps and futures

(and related collateral) may be held together in a proprietary account

and a default in such account should proceed in accordance with

existing Commission regulations. For example, if there is a default

only in the proprietary account, property in either customer account

will not be liable for that default, and such customer property will

either be transferred along with customer positions to another FCM or,

after the liquidation of customer positions, would be returned to the

Trustee for distribution as part of the appropriate account classes

pursuant to regulation 190.08.

---------------------------------------------------------------------------

\205\ See Vanguard at 7.

\206\ Pursuant to regulation 190.06(b)(3)(iii), for a particular

customer, a negative equity balance in one account class must be

offset against a positive equity balance in any other account class.

---------------------------------------------------------------------------

With respect to the application of DCO resources, the Commission

notes that if there is a shortfall in more than one account class,

after the application of collateral as permitted in the proposed and

existing rules, the DCO would apply its default resources to the

remaining shortfalls in each account in accordance with its then-

existing rules.

O. Regulation 22.15: Treatment of Cleared Swaps Customer Collateral on

an Individual Basis

As proposed, regulation 22.15 set forth the basic principle of

individual collateral protection. It required each DCO and each

Collecting FCM to treat the amount of collateral required with respect

to the portfolio of rights and obligations arising out of the Cleared

Swaps intermediated for each Cleared Swaps Customer as belonging to

that customer, which amount could not be used to margin, guarantee or

secure the Cleared Swaps, or any other obligations, of an FCM, or of

any other customer.

FIA urged the Commission to confirm that, in the event of an FCM

default, clearing FCMs and DCOs have flexibility to liquidate all

positions in an omnibus account (with the restriction that proceeds of

positions of non-defaulting customers may not be used to offset sums

owed by defaulting customers to the FCM or by the clearing FCM to the

DCO).\207\ SIFMA stated that proposed regulation 22.15 required that

``any temporary misallocation of non-defaulting customer property due

to [intra-day price movements on the day of a default] * * * be

rectified as promptly as possible so that the property of non-

defaulting customers is fully restored.'' \208\ ICI argued that if at

the time of an FCM default there is a misallocation of Cleared Swaps

Customer Collateral, the Commission should require such misallocation

to be corrected as soon as practicable.\209\ Similarly, Vanguard

requested that the Commission clarify that any initial misallocation

related to delayed recordkeeping be rectified as promptly as possible

such that the property of the non-defaulting parties is fully

restored.\210\ CME cautioned that errors in the Sec. 22.11 information

from an FCM could heighten the risk of misallocating Cleared Swaps

Customer Collateral in a default scenario, because a DCO will not have

the time or legal ability to resolve discrepancies in a portfolio.\211\

CME asked the Commission to clarify the allocation of this risk among

Cleared Swaps Customers.\212\ In addition, CME questioned how to

allocate excess collateral that is posted to a DCO for purposes of

daily reporting and in response to customer default, \213\ and sought

confirmation that the Commission intended to preserve the finality of

the clearing cycle.\214\

---------------------------------------------------------------------------

\207\ See FIA at 12-13.

\208\ SIFMA at 10.

\209\ See ICI at 5.

\210\ See Vanguard at 7.

\211\ See CME at 14.

\212\ See id.

\213\ See id. at 7-8.

\214\ See id. at 9.

---------------------------------------------------------------------------

The Commission has amended regulation 22.15 to make clear that

clearing FCMs and DCOs have the flexibility to liquidate all positions

in an omnibus account in the event of the default of a depositing FCM

or clearing member respectively. In addition, the Commission notes that

there will not be any unallocated excess collateral because such

collateral is either collateral in which the FCM has a residual

interest and does not belong to a customer, or collateral that must be

attributed to individual Cleared Swaps Customers. Furthermore, any

temporary misallocation of non-defaulting Cleared Swaps Customer

property or excess collateral would be resolved by the Trustee, in

computing the claims by such customers against the estate (or, where

appropriate, by the estate against such customers). In addition, these

discrepancies would not be the responsibility of the DCO, even if the

DCO transferred an amount on behalf of a Cleared Swaps Customer that

was later found to be too much, nor would such a transfer be subject to

avoidance.\215\ Finally, it is not the Commission's intent to disrupt

or unwind a complete and final settlement cycle, and northing in these

regulations should be construed to do so.

---------------------------------------------------------------------------

\215\ Cf. 11 U.S.C. 764(b).

---------------------------------------------------------------------------

P. Regulation 22.16--Disclosures to Customers

As proposed, regulation 22.16 requires each FCM to disclose, to

each of its Cleared Swaps Customers, the governing provisions of each

DCO (or the provisions of the customer agreement with respect to a

Collecting FCM) relating to use of Cleared Swaps Customer Collateral

and related matters.

The FIA advocated that these FCM disclosures be the subject of a

uniform disclosure document prepared by the industry, subject to

Commission approval.\216\ Given the diversity of industry practice in

the swaps market, the Commission is reluctant to mandate the use of a

uniform disclosure document. Nonetheless, the Commission sees no reason

to object to an FCM's use of a document prepared

[[Page 6360]]

by a committee, so long as the document accurately provides the

required information for each DCO on which the customer's positions are

cleared.

---------------------------------------------------------------------------

\216\ See FIA at 12.

---------------------------------------------------------------------------

V. Section by Section Analysis: Amendments to Regulation Part 190

A. Background

In April of 2010, prior to the enactment of the Dodd-Frank Act, the

Commission promulgated rules to establish an account class for cleared

OTC derivatives (and related collateral).\217\ At that time, there were

questions concerning the Commission's authority to require the

segregation of cleared OTC derivatives (and related collateral) or to

establish a separate account class for cleared OTC derivatives in a DCO

insolvency. As a result, protection for cleared OTC derivatives (and

related) collateral was limited to those cases where such derivatives

and collateral were required to be segregated pursuant to the rules of

a DCO, and the reach of the account class was limited to cases of the

bankruptcy of a commodity broker that is an FCM. Moreover, while

section 4d(a)(2) of the CEA permitted the inclusion in the domestic

futures account class of transactions and related collateral from

outside that class, there was no similar provision permitting the

inclusion in the cleared OTC account class of transactions and related

collateral from outside that latter class.

---------------------------------------------------------------------------

\217\ See Account Class, 75 FR 17297, Apr. 6, 2010.

---------------------------------------------------------------------------

Section 724 of the Dodd-Frank Act has resolved these questions. As

mentioned above, section 4d(f) of the CEA, as amended by the Dodd-Frank

Act, requires, among other things, segregation of Cleared Swaps and

Cleared Swaps Customer Collateral. Section 4d(f)(3)(B) of the CEA

permits the inclusion of positions in other contracts (such as

exchange-traded futures) and related collateral with Cleared Swaps and

Cleared Swaps Customer Collateral. Section 724(b) of the Dodd-Frank Act

amends the Bankruptcy Code to include in the definition of ``commodity

contracts'' Cleared Swaps with respect to both FCMs and DCOs. Thus,

this section V proposes amendments to regulation Part 190, pursuant to

Commission authority under section 20 of the CEA, in order to give

effect to section 724 of the Dodd-Frank Act, to implement Public Law

111-16, the Statutory Time-Periods Technical Amendments Act of 2009,

and to provide technical clarifications. Such amendments conform to

proposed Part 22.

B. Definitions

1. Proposed Amendment to Regulation 190.01(a)--Account Class

The Commission proposed amendments to regulation 190.01(a) to

change the definition of account class to include a class for cleared

swaps accounts, delete commodity option accounts from the definition,

make clear that options on futures and options on commodities should

not be grouped into one account class, clarify that Commission orders

putting futures contracts and related collateral in the cleared swaps

account class (pursuant to new section 4d(f)(3)(B) of the CEA) are

treated, for bankruptcy purposes, in a manner analogous to orders

putting Cleared Swaps and related collateral in the futures account

class (pursuant to CEA section 4d(a)(2)), and clarify that if, pursuant

to a Commission rule, regulation or order (or a DCO rule approved

pursuant to regulation 39.15(b)(2)), positions or transactions that

would otherwise belong to one class are associated with positions and

related collateral in commodity contracts in another account class,

then the former positions and related collateral shall be treated as

part of the latter account class. The Commission did not receive any

comments on proposed regulation 190.01(a) and is adopting regulation

190.01(a) as proposed.

2. Proposed New Regulation 190.01(e)--Calendar Day

The Commission proposed defining the term ``calendar day'' to

include the time from midnight to midnight. The Commission did not

receive any comments on proposed regulation 190.01(e) and is adopting

regulation 190.01(e) as proposed.

3. Proposed Amendment to Regulation 190.01(f)--Clearing Organization

The Commission proposed to amend the definition of clearing

organization to remove, as unnecessary, the reference to commodity

options traded on or subject to the rules of a contract market or board

of trade. The Commission did not receive any comments on proposed

regulation 190.01(f) and is adopting regulation 190.01(f) as proposed.

4. Proposed Amendment to Regulation 190.01(cc)--Non-Public Customer

The Commission proposed to amend the definition of non-public

customer to include references to non-public customers under regulation

30.1(c) (with respect to foreign futures and options customers) and in

the definition of Cleared Swaps Proprietary Aaccount. The Commission

did not receive any comments on proposed regulation 190.01(cc) and is

adopting regulation 190.01(cc) as proposed.

5. Proposed Amendment to Regulation 190.01(hh)--Principal Contract

The Commission proposed to amend the definition of principal

contract to include an exclusion for cleared swaps contracts. The

Commission did not receive any comments on proposed regulation

190.01(hh) and is adopting regulation 190.01(hh) as proposed.

6. Proposed Amendment to Regulation 190.01(ll)--Specifically

Identifiable Property

The Commission proposed to amend the definition of specifically

identifiable property to update references and change terms to conform

to other proposed changes to Part 190 and other business practices. The

Commission did not receive any comments on proposed regulation

190.01(ll) and is adopting regulation 190.01(ll) as proposed.

7. Proposed Amendment to Regulation 190.01 (pp)--Cleared Swap

Proposed regulation 190.01(pp) replaced the definition of ``Cleared

OTC Derivative'' that the Commission previously adopted with a

definition of cleared swap that includes the definition of that term in

regulation 22.1. The Commission did not receive any comments on

proposed regulation 190.01(pp) and is adopting regulation 190.01(pp) as

proposed.

C. Proposed Amendments to Regulation 190.02--Operation of the Debtor's

Estate Subsequent to the Filing Date and Prior to the Primary

Liquidation Date

The Commission proposed certain clarifications as well as technical

amendments to Sec. 190.02 to (1) expand the regulation to apply to

Cleared Swaps (and related collateral) and (2) change references to

``business days'' to ``calendar days,'' and require transfer

instructions by the sixth calendar day after the order for relief and

instruct transfers to be completed by the seventh calendar day after

the order for relief, in order to fall within the protection of section

764(b) of the U.S. Bankruptcy Code. The Commission did not receive any

comments on proposed regulation 190.02. However, in light of a recent

demonstration of the efficiency of transfer arrangements, it appears

that a full calendar day may not be necessary to execute such

instructions. Accordingly, the Commission is changing the amendment to

require transfer instructions to be provided by the seventh calendar

day after the order

[[Page 6361]]

for relief, at an hour to be specified by the trustee.

D. Proposed Amendments to Regulation 190.03--Operation of the Debtor's

Estate Subsequent to the Primary Liquidation Date

The Commission proposed certain technical amendments to regulation

190.03 to clarify that maintenance margin refers to the maintenance

margin requirements of the applicable designated contract market or

swap execution facility. The Commission did not receive any comments on

proposed regulation 190.03 and is adopting regulation 190.03 as

proposed.

E. Proposed Amendments to Regulation 190.04--Operation of the Debtor's

Estate--General

Proposed amendments to regulation 190.04 would extend the

liquidation of open commodity contracts to commodity contracts traded

on swap execution facilities.\218\ These commodity contracts would be

liquidated in accordance with the rules of the relevant SEF or DCM.

Open commodity contracts that are liquidated by book entry may also be

offset using the settlement price as calculated by the relevant

clearing organization pursuant to its rules, which rules are required

to be submitted to the Commission for approval pursuant to section

5c(c) of the CEA, or approved by the Commission (or its delegate)

pursuant to regulation 190.10(d). The Commission did not receive any

comments on proposed regulation 190.04 and is adopting regulation

190.04 as proposed.

---------------------------------------------------------------------------

\218\ Open commodity contracts traded on a designated contract

market would continue to be liquidated in accordance with the rules

of the relevant designated contract market.

---------------------------------------------------------------------------

F. Proposed Amendments to Regulation 190.05--Making and Taking Delivery

on Commodity Contracts

The Commission proposed technical amendments to regulation 190.05

to change a reference to ``contract market'' to ``designated contract

market, swap execution facility, or clearing organization,'' and

require the submission of rules for approval subject to section 5c(c)

of the CEA. The Commission did not receive any comments on proposed

regulation 190.05 and is adopting regulation 190.05 as proposed.

G. Proposed Amendments to Regulation 190.06--Transfers

The Commission proposed amendments to regulation 190.06 to (i)

Clarify that nothing in subparagraph (a) would constrain the

contractual right of the DCO to liquidate open commodity contracts,

(ii) permit the trustee to transfer accounts with no open commodity

contracts, as the Commission has permitted in a number of recent FCM

bankruptcies, (iii) prohibit the trustee from avoiding pre-petition

transfers made by a clearing organization as long as the money,

securities, or other property accompanying such transfer would not

exceed the funded balance of accounts held for or on behalf of

customers based on information available as of the close of business on

the calendar day immediately preceding such transfer minus the value on

the date of return or transfer of any property previously returned or

transferred thereto, and (iv) change ``business day'' to ``calendar

day.'' The Commission did not receive any comments on proposed

regulation 190.06 and is adopting regulation 190.06 as proposed.

H. Proposed Amendments to Regulation 190.07--Calculation of Allowed Net

Equity

Proposed amendments to regulation 190.07 clarify that individual

Cleared Swaps Customer Accounts within an omnibus account are to be

treated individually, correct a typographical error, change the

valuation of an open commodity contract so that the value of the

commodity contract would be derived from the settlement price as

calculated by the relevant clearing organization pursuant to its rules,

and change references to securities traded over-the-counter pursuant to

the National Association of Securities Dealers Automated Quotation

System to securities not traded on an exchange. The Commission did not

receive any comments on proposed regulation 190.07. However, the

Commission is adding ``paragraph (c)'' before ``(1)(ii)'' in regulation

190.7(c)(1)(i)(A) to clarify the cross reference.

I. Proposed Amendments to Regulation 190.09--Member Property

The Commission proposed amendments to regulation 190.09 to include

references to an account excluded pursuant to the proviso in regulation

30.1(c) (referring to proprietary accounts in the context of foreign

futures and options) and to the Cleared Swaps Proprietary Account. The

Commission did not receive any comments on proposed regulation 190.09

and is adopting regulation 190.09 as proposed.

J. Proposed Amendments to Regulation 190.10--General

Proposed amendments to regulation 190.10 have been made to require

notice by email and overnight mail. The Commission did not receive any

comments on proposed regulation 190.10. However, the Commission is

changing the reference to the ``Division of Clearing and Intermediary

Oversight'' to the ``Division of Clearing and Risk'' in regulation

190.10(a) to reflect changes based on a structural reorganization

within the Commission.

K. Proposed Amendments to Appendix A to Part 190--Bankruptcy Forms,

Bankruptcy

The Commission proposed changes to appendix A, form 1 to include

references to ``transfers'' generally, and to make certain technical

amendments to (i) Reflect the addition of section 4d(f) of the CEA by

section 724 of the Dodd-Frank Act, (ii) clarify that Commission

approval with respect to the rules of a registered entity that require

Commission approval means Commission approval under section 5c(c) of

the CEA, and (iii) conform certain time periods to the proposed changes

made by the Commission to implement Public Law 111-16, the Statutory

Time-Periods Technical Amendments Act of 2009. The Commission did not

receive any comments on the proposed amendments to appendix A and is

adopting appendix A as proposed.

L. Proposed Amendments to Appendix B to Part 190--Special Bankruptcy

Distributions

The Commission proposed amendments to Framework 1 of Appendix B to

clarify that the cross margining program is intended to apply only to

futures customers and customer funds for futures contracts, and to

Framework 2 of Appendix B to address shortfalls in Cleared Swaps

Customer Collateral. The Commission did not receive any comments on the

proposed amendments to appendix B. However, the Commission is making

certain technical corrections to bring the language of the appendix in

line with current statutory language.

VI. Effective Date

The Commission asked for comment, in the NPRM and at the Second

Roundtable, on the appropriate timing of effectiveness for the final

rules, and whether six months after the promulgation of final rules

would be sufficient.

At the Second Roundtable, several panelists stated that it would

take

[[Page 6362]]

approximately 18 months to 2 years after finalization of the

segregation rules to complete all of the documentation and other

infrastructure work that would be necessary to implement the

segregation regime selected by the Commission.\219\ These commenters

indicated that this lead time would be the same for the Legal

Segregation Models and the Full Physical Segregation Model, but may be

longer if the Commission were to select the Futures Model.\220\ In

other words, this 18 month to 2 year time period is ``a cost of moving

to the cleared world regardless of how it's done.'' Another panelist,

however, did state that six months did not seem to provide sufficient

time to complete all of the work that would need to be completed,\221\

though this commenter acknowledged that ``the real constraining factor

* * * is getting that final documentation with the clients.'' \222\

---------------------------------------------------------------------------

\219\ Second Roundtable Tr. at 58, 1.14 to 61, 1.17.

\220\ Id.

\221\ Second Roundtable Tr. at 62, 1.11 to 62, 1.19 (Mr. Diplas

stating that six months ``seems to live within the low side from the

standpoint in terms of the work, the IT work that needs to take

place between, like, FCMs and DCOs, the testing, et cetera, and also

even the agreements that we might have to do in terms of

consistency, of how these reports should look, and how the client

IDs should be done, et cetera, so that we don't have--each DCO have

a different methodology in that respect.'').

\222\ Second Roundtable Tr. at 63, 1.2 to 63, 1.4.

---------------------------------------------------------------------------

Comments to the NPRM generally reinforced the need for additional

time. ISDA recommended that there be a minimum of 18 months between

final promulgation of the rules and effectiveness.\223\ In addition,

FIA stated that, according to certain representatives from investment

management firms, it would take one to two years to implement whatever

model is chosen by the Commission.\224\ ICE requested that, if a model

other than the Futures Model is adopted, the Commission provide

sufficient time to FCMs and DCOs to allow them ``to analyze, develop

and implement the necessary systems and processes relating to'' the

selected segregation model.\225\ In addition, ICI stated that market

participants need time to develop ``the operational and systems

infrastructure necessary to facilitate a smooth transition to

clearing.'' \226\

---------------------------------------------------------------------------

\223\ See ISDA at 11.

\224\ See FIA at 6.

\225\ ICE at 11.

\226\ ICI at 2.

---------------------------------------------------------------------------

As acknowledged by some commenters, the 18 month to 2 year time

period is the time period needed to transition to clearing. It is not

the time period necessary to implement the Complete Legal Segregation

Model. Because the Commission did not receive any specific comments

regarding the time period needed to implement the Complete Legal

Segregation model, the Commission considered adopting the effective

date that was proposed in the NPRM. However, given representations from

market participants regarding the amount and tenor of the work that

would need to be completed to implement clearing, the Commission is

extending the compliance date for the Part 22 rules to November 8,

2012, the compliance date set forth in the rules implementing DCO Core

Principles for the gross margining requirement of Regulation

39.13(g)(8)(i).

Given the importance of implementing the time period changes in

Part 190 as soon as possible, and because the implementation issues

raised by Part 22 do not apply to Part 190, which imposes obligations

primarily on bankruptcy trustees, the compliance date for the Part 190

rules is the effective date of these rules. However, during the period

between the compliance date for Part 190 and the compliance date for

Part 22, Commission rules will not require segregation of Cleared Swaps

or Cleared Swaps Collateral. Accordingly, consistent with the approach

applicable under current Part 190, where protection for cleared OTC

derivatives (and related) collateral is limited to those cases where

such derivatives and collateral are required to be segregated pursuant

to the rules of a DCO, during that period, the definition of 190.01(pp)

(``Cleared Swap'') shall be limited to transactions where the rules or

bylaws of a derivatives clearing organization require that such

transactions, along with the money, securities, and other property

margining, guaranteeing or securing such transactions, be held in a

separate account for Cleared Swaps only.

VII. Consideration of Costs and Benefits

A. Introduction

Section 15(a) of the CEA \227\ requires the Commission to consider

the costs and benefits of its actions before issuing a rulemaking under

the CEA. 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. To the extent that these new

rules reflect the statutory requirements of the Dodd-Frank Act, they

will not create costs and benefits beyond those mandated by Congress in

passing the legislation. However, the rules may generate costs and

benefits attributable to the Commission's determinations regarding

implementation of the Dodd-Frank Act's statutory requirements. The

costs and benefits of the Commission's determinations are considered in

light of the five factors set forth in CEA section 15(a).

---------------------------------------------------------------------------

\227\ 7 U.S.C. 19(a).

---------------------------------------------------------------------------

1. Business and Legal Context of the Segregation Requirement for

Cleared Swaps Customer Collateral

The Commission's Part 22 rules are one component of the regulatory

infrastructure for clearing \228\ swaps transactions mandated by the

Dodd-Frank Act. Though a significant fraction of swaps transactions may

be required to be cleared through DCOs, many swaps transactions may

voluntarily be cleared though DCOs. Swaps users and some swap dealers

transact with the DCO through FCMs that the DCO admits as ``clearing

members'' and who are subject to DCO rules. As described above in

detail, for every transaction received by or matched through its

facilities, a DCO acts as the buyer to every seller and the seller to

every buyer, essentially guaranteeing financial performance.\229\

---------------------------------------------------------------------------

\228\ As described above, clearing is the process by which

transactions in derivatives are processed, guaranteed, and settled

by a central clearing organization, the DCO. See section I.B.

\229\ For a detailed discussion of clearing as it pertains to

swap transactions, see section I.B.

---------------------------------------------------------------------------

2. Overview of the Statute and Regulation

Proposed Part 22 implements the requirement of the newly enacted

CEA section 4d(f) that property provided by Cleared Swaps Customers to

FCMs to serve as collateral for Cleared Swaps transactions be treated

as the property of the customers, not the FCM or DCO; and that such

property be maintained in accounts separate from the property of the

FCM or DCO, although such accounts can hold the commingled collateral

of more than one Cleared Swaps Customer ``for convenience.'' \230\

These basic requirements that Cleared

[[Page 6363]]

Swaps Customer Collateral be treated as the property of customers and

maintained in segregated accounts are imposed by the statute

independently of the Commission's particular implementing regulations

and, by the terms of the statute, would apply even if the Commission

promulgated no implementing regulations. Generally, the core statutory

segregation requirements serve two functions: (1) They help ensure that

FCMs, DCOs, and other depositories of assets deposited by swaps

customers to serve as collateral for their Cleared Swaps transactions

treat such customer collateral as the property of the customers and not

use it for their own proprietary business purposes; and (2) in

conjunction with Subchapter IV of Chapter 7 of the Bankruptcy Code,

they provide protection of Cleared Swaps Customer Collateral from the

claims of other creditors in the event of the bankruptcy of an FCM.

---------------------------------------------------------------------------

\230\ Though treating futures customer collateral on a

collective basis may, at one time, have been practically necessary

``for convenience,'' such practice is not standard in the current

swaps market nor is it as critical in an era where account

information is stored and processed on an automated basis. For

example, and as noted above, DCOs are already assessing risks posed

by clearing members' customers at the individual customer level. See

supra n.122.

---------------------------------------------------------------------------

Sections 22.2 through 22.10 implement the basic architecture of a

system of segregation for swaps customer funds roughly comparable to

the system used for customer funds for futures contracts under CEA

sections 4d(a)(2) and 4d(b) and Commission regulations 1.20 through

1.30 and 1.49.\231\ Some provisions of sections 22.2 through 22.10

essentially restate the statutory requirements. Other provisions of

these sections set forth requirements intended to (a) ensure that the

objectives of the statute are met and (b) clarify FCMs' and DCOs'

duties under the statute and facilitate carrying out those duties in an

efficient manner.\232\ The basic architecture established by sections

22.2 through 22.10 is supplemented by section 22.16, a disclosure

requirement designed to inform swaps customers of DCO and FCM policies

regarding the handling of their collateral in case of default and by

amendments to part 190 of the Commission's rules intended to ensure

that cleared swaps customer accounts of the sort required by Part 22

are treated as a separate account class under bankruptcy law in the

event the relevant FCM files for bankruptcy.\233\

---------------------------------------------------------------------------

\231\ See discussion in sections IV.B through IV.J.

\232\ See id.

\233\ See discussion above in section IV.P and section V.B.1.

---------------------------------------------------------------------------

Proposed sections 22.11 through 22.15 add to this basic segregation

architecture provisions designed to implement the Complete Legal

Segregation Model for protecting swaps customer funds against Fellow-

Customer Risk.\234\ Proposed sections 22.11, 22.12, and 22.14 are

intended to ensure that DCOs have available information that will

enable them to attribute the value of assets in an FCM's customer

account to individual customers in the event of an FCM's default on

obligations to the DCO arising in connection with swaps transactions

cleared for customers.\235\ Section 22.14 also requires certain

transfers of customer collateral among FCMs in response to margin

calls.\236\ Section 22.5 prohibits the DCO from using asset value in an

FCM's customer account attributable to one customer to margin,

guarantee, or secure the Cleared Swaps or other obligations of the

relevant FCM or of other customers.\237\ Section 22.13 clarifies that

DCO's have the right, at their election, to require (on the grounds of

risk management) larger amounts of collateral from selected

customers.\238\

---------------------------------------------------------------------------

\234\ See discussion above in section IV.K through section IV.O.

\235\ See discussion above in sections IV.K., IV.L. and IV.N.

Having such information at the DCO can be quite valuable in a

situation where the FCM is bankrupt.

\236\ See discussion above in section IV.N.

\237\ See discussion above in section IV.E.

\238\ See discussion above in section IV.M.

---------------------------------------------------------------------------

3. Organization and Focus of the Consideration of Costs and Benefits

Section VII.B presents the Commission's considerations regarding

the costs and benefits arising from the Commission's choice of the

Complete Legal Segregation Model as set forth in sections 22.11 through

22.15.\239\ The costs and benefits of the Commission's choice of model

for addressing Fellow-Customer Risk are, in the view of the Commission,

the most significant cost-benefit issues in this final rulemaking, as

is reflected in the fact that discussions of cost-benefit issues in

comments to the NPRM focused almost exclusively on the choice of model.

This section of the discussion employs the Futures Model--in essence,

the rule without sections 22.11 through 22.15--as a baseline for

comparison because this model was favored by several commenters and

because comparison with this model provides a useful and appropriate

methodology for isolating, to the extent possible, the relative costs

and benefits of the alternative models presented by the commenters and

considered by the Commission.\240\

---------------------------------------------------------------------------

\239\ As discussed above, in addition to the Futures Model and

the Complete Legal Segregation Model, the Commission gave

consideration to other alternatives: the Legal Segregation with

Recourse Model and the Physical Segregation Model. No commenters

supported the Legal Segregation with Recourse Model on grounds that

it involved the same costs as the Legal Segregation Model, but with

fewer benefits. Accordingly, its costs and benefits are not

considered further in this analysis. Several commenters did support

the Physical Segregation Model; however, as noted above, the

effectiveness of the Physical Segregation Model is limited due to

the application of the ratable distribution requirements of section

766(h) of the Bankruptcy Code. As such, these limitations were

disqualifying.

\240\ CIEBA, FHLB, SIFMA, and Fidelity argue that the correct

baseline for making cost and benefit comparisons should be the

current practice in the uncleared swaps markets rather than the

Futures Model (See CIEBA Original at 12; FHLB at 9; SIFMA at 7; and

Fidelity at 7). In principle, using this benchmark rather than the

Futures Model would change the absolute level of costs and benefits

of the alternatives under consideration but would not change the

relative ranking of those alternatives so long as comparisons to the

benchmark were made in a consistent fashion. There are, however,

practical advantages to using the Futures Model as a benchmark

because current practice with regard to protection of collateral in

the uncleared swaps market is unregulated and the level of

protection provided varies considerably across transactions.

Moreover, CEA, as amended by the Dodd-Frank Act, does not permit the

Commission to retain the current practice regarding uncleared swaps.

Because the appropriate baseline for the consideration of costs and

benefits is the Futures Model rather than the uncleared swaps model,

the costs and benefits of the basic requirement that swaps customer

collateral be kept in segregated accounts and treated as the

property of customers rather than the property of FCMs or DCOs are

included within the baseline and not evaluated separately.

---------------------------------------------------------------------------

Notably, this comparative analysis pivots, in the first instance,

on who bears the cost of the most significant cost driver--Fellow-

Customer Risk. Where the risk is assigned to one constituency (e.g.,

swap users in the Futures Model baseline) a virtually mirror image risk

mitigation benefit is conferred on others (e.g., DCOs and clearing

members in the Futures Model baseline).

Under any model, however, once such risks are initially assigned,

the affected entities and market participants, may then attempt to re-

allocate or shift such assigned risks or costs to other entities or

market participants. The LSOC Model, in the first instance places

fellow risk on DCOs and clearing members with corresponding mitigation

of risk to swaps users. However, as explained in detail below, market

participants can be expected to adapt to the direct allocation of risk

associated with one or another of the models in a variety of ways, and

the ultimate costs and benefits of the rule will reflect both its

direct allocation of risk and the effect of adaptations to that

allocation.

For example, as described below, some, though not all, DCOs

commented that they would be likely to adapt to the LSOC Model by

increasing margin levels. To the extent that this occurs, the rule

would have the effect of reducing the risks of losses to the DCO and

the FCM because there would be a reduced

[[Page 6364]]

likelihood of any given customer incurring losses that exceed the

margin posted by that customer. In return for the benefit of reduced

fellow customer risk and legal allocation of the residual risk to DCOs

and their members, swaps users would incur the opportunity cost of

having to use more capital as collateral for their Cleared Swaps. Thus,

to the extent that DCOs adapt to the LSOC Model in this fashion, the

rule would function in a manner analogous to insurance, with swaps

users incurring somewhat higher costs in their routine use of swaps in

return for a lower risk of wholesale loss of collateral as a result of

some other swaps user's market losses. As also described below, the

LSOC Model is expected to alter behavioral incentives for market

participants relative to the Futures Model in variety of other ways

that will create costs and benefits but that the Commission believes

will lead to a net increase in monitoring of risky behavior by FCMs and

that, on balance, will facilitate transfer of customer positions and

collateral in the event of the simultaneous default of an FCM and one

or more customers.

B. Benefits and Costs of Complete Legal Segregation Model Relative to

Futures Model

1. Introduction

As noted above, the Complete Legal Segregation Model is intended to

provide swaps customers with protection against Fellow-Customer

Risk.\241\

---------------------------------------------------------------------------

\241\ For a discussion of Fellow-Customer Risk, see supra

section I.B.6.

---------------------------------------------------------------------------

The basic difference between the Complete Legal Segregation Model

and the Futures Model thus relates to a difference in the allocation of

loss arising out of a double default of both a customer and the

customer's FCM. Under the Futures Model, this risk is borne by

customers in the form of ``Fellow-Customer Risk''-- the risk that a

customer will lose some or all of the value of its collateral due to

the default of some other swaps customer or customers of the clearing

FCM. Under the LSOC Model, this risk to customers is substantially,

though not completely, eliminated. However, the corresponding loss, in

the event of a double default, falls on the DCO and, through the

guaranty fund, its non-defaulting members. In practice, under the LSOC

Model, DCOs can be expected to take measures to protect themselves

against the risk of loss from a double default, and some of the

material benefits and costs are likely to flow from a DCO's adaptations

to the rule.

The next section reviews, respectively, the material benefits and

costs that the Commission believes will arise from the Commission's

selection of the LSOC Model.

2. Material Benefits and Costs Arising From the Complete Legal

Segregation Model

a. Benefits to Customers of Protection Against Fellow-Customer Risk

The primary benefit of the Complete Legal Segregation Model to

customers is the protection of non-defaulting Cleared Swaps Customers

against loss of the value of their collateral due to the use of such

value by the relevant DCO in the event of a double default.\242\ The

associated cost to those customers is the payment they will be required

to make for protection against this risk, where this payment will

likely originate from some combination of the capital cost of posting

higher initial margins and/or higher fees for swaps transactions (see

subsection b below).

---------------------------------------------------------------------------

\242\ According to comments on the ANPR, the direct benefit to

customers in the form of reduced risk of loss of collateral stemming

from the activities of fellow customers may generate indirect

benefits. For example, commenters indicated that increased security

for collateral could increase their ability to use swaps for

business purposes, although this effect could be counterbalanced by

increased dollar costs. Commenters also stated that the increased

protection against Fellow-Customer Risk would reduce their need to

incur costs to protect against the effects of loss of Cleared Swaps

Customer Collateral.

---------------------------------------------------------------------------

Comments regarding this rulemaking have indicated that, as a result

of the statutory clearing requirements in the Dodd-Frank Act, once the

cleared swaps market has matured, Cleared Swaps Customers would be

posting upwards of $500 billion in collateral to secure their Cleared

Swaps positions.\243\ The Commission notes that the precise amount will

depend on how the market evolves and can be expected to change over

time.\244\ Under the Futures Model, the value of this collateral will

be exposed to greater Fellow-Customer Risk than under the other models

considered. In addition, it does not appear possible to reliably

quantify the probability of the actual loss of value of collateral by a

given customer due to Fellow-Customer Risk for a number of reasons. By

their nature, double defaults are rare events, though potentially

important if they involve major FCMs. Because the mandatory clearing of

swaps under the Dodd-Frank Act has not yet gone into effect, there is,

as yet no body of experience with such clearing in practice, and a

fortiori no experience with FCM defaults under the Dodd-Frank clearing

regime.\245\ There has been experience with FCM default in the futures

industry, but the numbers are too small to permit reliable

extrapolation.\246\ In addition, a number of commenters suggested that

Fellow-Customer Risk may be greater in the cleared swaps market than in

the futures market because swaps are less liquid than exchange-traded

futures (thereby resulting in greater volatility of prices,

particularly in times of financial stress) and because the aggregate

value of transactions in the swaps market is many times greater than

the aggregate value of transactions in the futures market.\247\ The

Commission notes these commenters requested increased protection for

their funds to guard against Fellow-Customer Risk.

---------------------------------------------------------------------------

\243\ CME Comment on ANPR at 7 (estimated $500 billion in

collateral for swaps expected to be cleared by CME); ISDA February

16, 2011 Comment on ANPR at 2 (estimated $833 billion industry-

wide).

\244\ Id.

\245\ Several clearing houses do, however, have experience

clearing swaps on a voluntary basis. For example, LCH has been

clearing interest rate swaps for over a decade, and ICE actively

clears credit default swaps. In addition, while there are examples

of FCM defaults related to clearing futures (e.g., Griffin Trading

Co., Klein Futures, Inc. and Lehman Brothers, Inc.), there have been

no FCM failures related to the clearing of swaps transactions.

\246\ In the past two decades, there have been only two cases of

double defaults in the futures markets: Griffin Trading Co. and

Klein Futures, Inc. See Trustee v. Griffin, 440 B.R. 148 (2010);

CFTC Division of Trading and Markets, Report on Lessons Learned from

the Failure of Klein & Co. Futures, Inc., July 2001, available at

http://www.cftc.gov/files/tm/tmklein_report071101.pdf. With respect

to FCM defaults generally in the futures markets, one commenter

observed, ``The United States, fortunately has seen only a handful

of FCM failures in recent decades. As a result, the FCM liquidation

process, including the availability of porting, has not been tested

under a wide variety of circumstances.'' ISDA at 3.

\247\ See, e.g., Second Roundtable Tr. at 165, 283-84

(characteristics of swaps may make it more difficult to liquidate or

transfer customer positions in case of an FCM insolvency than for

futures).

---------------------------------------------------------------------------

Notwithstanding its inability to reasonably quantify the value of

benefits associated with Fellow-Customer Risk elimination, the

Commission, in light of comments received in response to both the ANPR

and NPRM, believes that the Complete Legal Segregation Model confers

benefits to swaps users. In fact, buy-side commenters represented that

they desired the protection afforded through the Complete Legal

Segregation Model, notwithstanding the costs associated with that

protection.\248\ The

[[Page 6365]]

ability of a swaps customer to determine Fellow-Customer Risk at a

particular FCM is limited, because confidentiality restraints

inherently limit the amount of information that an FCM can provide

customers with respect to the creditworthiness, swaps positions, and,

in some cases, even identity of its other customers.\249\ This, in

turn, impairs (if not completely precludes) the customer's ability to

evaluate Fellow-Customer Risk, hindering their ability to manage it,

insure against it, or appropriately account for it in business

decision-making.\250\

---------------------------------------------------------------------------

\248\ E.g. MFA at 7-8; BlackRock at 7; Fidelity at 6; LCH at 2.

The numerical estimates of higher margin and guaranty fund levels

for Complete Legal Segregation relative to the Futures Model

described in the text below were also described in the NPRM so swaps

users who commented in response to the NPRM presumably were aware of

them. However, some commenters who supported Complete Legal

Segregation indicated that they did not give full credence to the

higher of the cost estimates. E.g., MFA at 7-8.

\249\ Id. See also Second Roundtable Tr. at 183-185.

\250\ E.g., Tudor at 2; Fidelity at 3; MFA at 3-8. See also

supra at 50-51.

---------------------------------------------------------------------------

Both the benefit to customers of greater protection for their

collateral provided under the Complete Legal Segregation Model as well

as the associated costs depends, to an extent, on customer behavior in

advance of a double default. Prior to an FCM insolvency, customers have

the right to find another FCM to carry their accounts, and to have

their existing FCM transfer their positions and collateral to that

clearing FCM.\251\ Under the extreme assumption that all customers

costlessly anticipate the default and move their positions to another

FCM before the default occurs, the Complete Legal Segregation Model

offers no apparent greater benefit to customers over the Futures Model.

However, on this assumption the Complete Legal Segregation model also

imposes no additional losses to the DCO compared with the Futures Model

since, in this instance, under neither model is the collateral of non-

defaulting customers available to the DCO to cure the default. As a

result, the extent to which customers can anticipate a fellow-customer

default will tend to decrease both the benefits and the costs of the

Complete Legal Segregation Model.

---------------------------------------------------------------------------

\251\ See 76 FR at 69442.

---------------------------------------------------------------------------

b. ``Risk Costs'' and Potential Effects on Margin Levels and DCO

Guaranty Fund Levels in Response To Complete Legal Segregation.

Risk Costs refer to the costs associated with the allocation of

loss in the event of a default under the Complete Legal Segregation

Model relative to the Futures Model. This can usefully be divided into

direct and indirect costs (and associated benefits). The direct cost of

the Complete Legal Segregation Model is the increased risk the DCO will

face when a Cleared Swaps Customer and its FCM default, which equals

the probability of a default by a Cleared Swaps Customer and its FCM,

multiplied by the expected contribution that fellow customers would

have provided toward the uncovered loss. (As discussed in the previous

section, there is a corresponding gain to Cleared Swaps Customers which

is the value they place on avoiding this same cost, i.e., the value of

having the equivalent of insurance against Fellow-Customer Risk.) \252\

Thus, the Complete Legal Segregation Model will potentially result in a

decrease in the financial resources package available to the DCO in the

event of default. Maintaining the same assurance of performance of the

DCO's function as central counterparty in the circumstances of a double

default may require the DCO to, therefore, raise additional financial

resources.\253\ The comments submitted to the Commission by DCOs and

others have suggested two possible ways by which DCO's default resource

structure under the Complete Legal Segregation Model might differ from

the Futures Model: Either through higher initial customer margins or by

increasing the size of the DCO's guaranty fund.\254\ Of course, actual

DCOs could use a mixture of adjustments to margins and guaranty funds.

Commenters who estimated higher costs resulting from Complete Legal

Segregation therefore estimated potential effects on margins and

guaranty funds in isolation, while generally recognizing that this is a

simplification of what actual practice is likely to be.\255\

---------------------------------------------------------------------------

\252\ In addition, as discussed in section VII.B.3.b.iv., there

are efficiency gains in centralizing FCM monitoring in a small

number of parties. Moreover, because of confidentiality

considerations, among other things, DCOs have greater access to

information from their Clearing Members than Cleared Swaps Customers

do. As a result of this greater access to information and because of

the increased incentive on DCOs to actively monitor the risks posed

by their Clearing Member FCMs and Cleared Swaps Customers, the

overall effectiveness of risk management may be increased.

\253\ Section 725(c)(2)(B)(ii) of the Dodd-Frank Act requires

that a DCO possess financial resources that, at a minimum, would

allow the DCO to meet its financial obligations notwithstanding a

default by the member or participant creating the largest financial

exposure for that organization in extreme but plausible market

conditions. See also 76 FR at 69344-45. In determining what

financial resources are needed to comply with section

725(c)(2)(B)(ii) and its implementing regulations, a DCO will need

to evaluate and take into consideration the effect of Complete Legal

Segregation. However, within limits, the statute and regulations

permit the exercise of judgment by the DCO as to the methods it will

use to do this. As is indicated in the discussion in the text below,

in comments to the proposed rulemaking, different DCOs have

suggested that they may differ in their evaluation of the practical

effects of Complete Legal Segregation, in the value they ascribe to

fellow-customer collateral as a resource, and in the steps they will

take to maintain adequate financial resources in light of their

evaluation.

\254\ A guaranty fund is a fund created by a DCO to which the

clearing members contribute, in proportion generally set by DCO

rule. See supra section I.B.4 and n. 27. The assets in the fund are

then available to cover losses resulting from defaults by one or

more clearing members, whether in their proprietary capacity or due

to customer accounts, to the extent those losses are not covered by

available collateral provided by the defaulting Clearing Member

(limited to proprietary collateral for a default in the clearing

member's proprietary account, or including customer collateral for a

customer default). In addition, a DCO may retain by rule the right

to call upon the members to contribute additional assets, up to a

defined amount, if the pre-funded default resources are insufficient

(referred to as an ``assessment power'').

\255\ ICE contends that DCOs will choose to adjust to Complete

Legal Segregation entirely by increasing margins rather than

guaranty funds because Complete Legal Segregation increases the risk

that assets in guaranty funds will actually be used to cover losses

in the event of a double default. According to ICE, excessive

reliance on margin is undesirable because guaranty funds offer the

DCO more flexibility in responding to defaults and may be more

liquid than assets used as margin. See ICE at 6-7. However, while

ICE may be correct that clearing member FCMs, all other things being

equal, would prefer less risk of loss of assets contributed to

guaranty funds, there may be counterbalancing factors. For example,

clearing customers may prefer a DCO with a larger guaranty fund and

lower margin levels. Similarly, if a structure of default resources

with an excessive ratio of margin to guaranty fund is, in fact, less

effective or efficient for dealing with FCM defaults, a DCO that

employs such a structure might be at a competitive disadvantage.

---------------------------------------------------------------------------

Assuming no change in guaranty fund levels, ISDA suggested that the

Complete Legal Segregation Model would require an increase of roughly

60% in initial margins relative to the Futures Model.\256\ A number of

other participants in the Commission's roundtables thought that the

method used to arrive at the estimate was a reasonable way to roughly

model the effect of Complete Legal Segregation on margin levels.\257\

---------------------------------------------------------------------------

\256\ ISDA January 18, 2011 Comment on ANPR at 9. The assumption

that DCOs would use a 99.9% confidence level under Complete Legal

Segregation was based on ``suggestions'' made at the Commission's

First Roundtable. See First Roundtable Tr. at 110-111.

\257\ See, e.g., First Roundtable Tr. at 110-114; Second

Roundtable Tr. at 255-57.

---------------------------------------------------------------------------

CME estimated that Complete Legal Segregation would require an

increase in margin in the range of 60% to 90%.\258\ CME did not specify

the quantitative assumptions underlying its estimate.\259\ To

illustrate effects on margin in dollar terms, CME made the assumption

that, in a mature swaps market, it might expect to clear interest rate

swaps with a notional value of $200 trillion. On this assumption, CME

projected required margin from

[[Page 6366]]

customers clearing through CME of $500 billion under the Futures Model

and $800-900 billion under Complete Legal Segregation.\260\ ISDA

estimated that, industry-wide, Complete Legal Segregation would require

$581 billion more margin than the Futures Model (a 69.75% increase over

a baseline, for the Futures Modal, of $833 billion). ISDA made clear

that this estimate was based on a number of assumptions about future

market activity and on data obtained from only four FCMs. Therefore,

this figure is best construed as an estimate of the general magnitude

of the effects expected by ISDA and not as a precise predicted dollar

figure.\261\ Nonetheless and notwithstanding this estimate of higher

initial margin, ISDA concluded that Complete Legal Segregation was

``the most appropriate choice of holding model for cleared swaps

collateral'' of the models proposed in the NPRM and supported this

approach because it facilitated porting of customer positions in the

event of an FCM default.\262\

---------------------------------------------------------------------------

\258\ CME Comment on ANPR at 7-8.

\259\ See CME Comment on ANPR at 8 (describing methodology used

in general terms).

\260\ CME Comment on ANPR at 7-8.

\261\ ISDA January 18, 2011 Comment on ANPR at 10.

\262\ ISDA at 1. For a more detailed discussion of the benefits

of Complete Legal Segregation for porting, see section VII.B.3.b.ii.

---------------------------------------------------------------------------

Although the above estimates were based on data for interest rate

swaps, commenters and participants in roundtable discussions indicated

that somewhat higher margin levels might be needed to maintain adequate

default resources in connection with credit default swaps because of

the high volatility and idiosyncratic risks associated with this type

of swap.\263\ Using data concerning credit default swaps it currently

clears, albeit not under the Dodd-Frank legal regime, ICE estimated

that the required initial margin increases would range from 40% to

371%.

---------------------------------------------------------------------------

\263\ Second Roundtable Tr. at 255.

---------------------------------------------------------------------------

These estimates assume that the entire default resource shortfall

resulting from the DCO's lost reliance on collateral posted as margin

by non-defaulting customers is reflected in higher initial margins. To

illustrate the other extreme, CME estimated the cost of responding to

Complete Legal Segregation purely by means of an increase in its

guaranty fund. According to CME, it would be necessary to double the

size of the guaranty fund using this approach, although their comment

indicates that this should be taken as a rough estimate likely to be

adjusted based on experience in the future.\264\ Under its assumption

that in the future it might clear a notional value of $200 trillion in

interest rate swaps, CME estimates that it would require a guaranty

fund of $50 billion under the Futures Model and $100 billion under

Complete Legal Segregation. CME also stated that it might prove

possible to adapt to Complete Legal Segregation using ``what is

traditionally called `concentration' margin whereby the DCO sets a

level of risk at which it would begin to charge higher margins based on

indicative stress-test levels.'' According to CME, if it proved

possible to implement such a system, likely ``concentration charges''

would fall in the range of $50-$250 billion.\265\ However, CME stated

that it currently lacked sufficient information to precisely assess an

appropriate methodology using this approach and that this approach

could have disadvantages which would need to be addressed before it was

considered as a practical approach.\266\ ISDA estimated that industry-

wide guaranty funds under the Futures Model would come to $128

billion.\267\ ISDA apparently did not independently estimate the effect

of Complete Legal Segregation on guaranty funds, but, relying upon DCO

estimates that they would approximately double, estimated an increment

of an additional $128 billion for Complete Legal Segregation industry-

wide.\268\ If guaranty funds are larger as a result of Complete Legal

Segregation, it is likely that some or all of the cost would be passed

on by FCMs to their customers in the form of higher fees. However, in

the absence of more information about future competitive conditions in

the cleared swaps market and similar matters, it is not possible to

reliably estimate the extent to which this would occur.

---------------------------------------------------------------------------

\264\ CME Comment on ANPR at 7-8. The comment states that under

Complete Legal Segregation CME, in determining the size of the

guaranty fund ``would likely change [from an approach treating

customer margin accounts as diversified unitary pools] to an

approach geared toward assessing the largest loss associated with a

certain number of the largest individual customer accounts.

Currently, we presume that five such customer accounts would be our

target, although experience and prudence would be our guide. In any

event, our stress-test loss profile of the largest customer accounts

would almost certainly generate larger `worst loss' results [under

Complete Legal Segregation] than under [the Futures Model].'' Id.

\265\ Id. at 8-9.

\266\ Id.

\267\ ISDA January 18, 2011 Comment on ANPR at 10. ISDA stated

that this estimate referred to the funded component of guaranty

funds and did not include DCO's right to call for more assets from

member FCMs when needed.

\268\ ISDA January 18, 2011 Comment on ANPR at 9-10 and n.8

(referring to CME estimate).

---------------------------------------------------------------------------

By contrast to CME, ICE, and ISDA, LCH stated that it is not

appropriate to attribute higher margins and/or guaranty funds to the

Complete Legal Segregation Model than to the Futures Model and that the

appropriate level of default resources for DCOs, is the same under both

models.\269\ LCH has a more than a decade's worth of experience

clearing OTC swaps. LCH states that a methodology in which no

diversification of customer collateral is assumed represents their

current practice, and is appropriately ``conservative'' in terms of

capital adequacy.\270\ LCH maintains that, even if it is legally

permissible for a DCO to take advantage of fellow customer collateral,

it is imprudent to assume that any funds in the omnibus Cleared Swaps

Customer Account will remain at the time of default.\271\ In the event

that default occurs not as a sudden shock, but rather, as the end of a

process of credit deterioration taking place over a number of days

(potentially a number of weeks), the Cleared Swaps Customers may have

time (and, if subject to Fellow-Customer Risk, strong incentive) to

port (i.e., transfer) their Cleared Swaps Contracts and associated

collateral away from the defaulting FCM.\272\ CME also has noted that

an FCM default is likely to be preceded by a period of financial

turmoil: ``In a situation where an FCM has defaulted on its obligations

to one or more DCOs, it is entirely possible that the FCM or its parent

company has been under severe financial stress for some period of

time.'' \273\

---------------------------------------------------------------------------

\269\ Evaluating the Costs of Complete Legal Segregation, Aug.

2011, at 6-11 (``LCH White Paper'').

\270\ 76 FR at 33847, n. 177.

\271\ LCH White Paper at 8.

\272\ LCH at 3.

\273\ CME at 14. See also id. (describing a situation where ``an

increasing number of customers were removing their assets and

accounts.'').

---------------------------------------------------------------------------

Thus, according to the logic of LCH's approach, the size of the

guaranty fund and/or initial margin levels would need to be as high

under the Futures Model as under the Complete Legal Segregation

Model.\274\

---------------------------------------------------------------------------

\274\ LCH White Paper at 8.

---------------------------------------------------------------------------

The divergence in the approaches of LCH and the other two

clearinghouse commenters is due in part to different implicit

assumptions about fellow customer behavior, and how such behavior

should affect a DCO's design of default resources. Under Complete Legal

Segregation, such an approach likely requires an assessment of the

largest stressed loss on a small (or concentrated) number of the

largest customers of the given FCM since, in this instance, the DCO

would not have access to the collateral of non-defaulting customers.

Under the Futures Model, by contrast, consideration of the largest

[[Page 6367]]

stressed loss might occur over an expanded (and, to a degree, more

diversified) pool of customers because the DCO is permitted to use the

mutualized pool of customer collateral. Hence, the Complete Legal

Segregation Model effectively prohibits the DCO from using the

mutualized pool of customer deposits as a resource in the event of

double default. It follows that the extent to which the Complete Legal

Segregation Model actually affects the DCO's resources relative to the

Futures Model depends upon the degree to which non-defaulting Cleared

Swaps Customers collateral will be present following a default. If all

Cleared Swaps Customer Contracts remained with the defaulting FCM

through the default, then the DCO could potentially measure the

adequacy of guaranty funds based on a fully diversified pool of

customer positions. Conversely, if all customers would transfer their

positions to a different FCM in anticipation of the default, then the

diversification (and its consequence for the DCO's financial resources

package) would be eliminated.

More generally, the extent to which the Complete Legal Segregation

Model leads to a higher guaranty fund or higher levels of margin per

customer than the Futures Model depends on the extent to which Cleared

Swaps Customer Contracts can be expected to remain with the defaulting

FCM during the period immediately preceding a default. Since the

circumstances of particular FCM defaults will vary, DCOs, in

determining their financial resources package, should be expected to

take into consideration the possibility that, at least for some FCM

defaults, there will be warning signs, resulting in a portion of

Cleared Swaps Customer Collateral being transferred out of the Cleared

Swaps Customer Account maintained by the defaulting FCM.

While determining the appropriate assumptions regarding customer

behavior under the Futures Model is central to the issue of the

adequacy of a DCO's default resources, it may prove less central to the

consideration of relative costs and benefits under this rule, since

both of those costs and benefits depend on the extent to which Cleared

Swaps Customers will transfer their Cleared Swaps Contracts. In

general, the greater the extent to which customers will move their

positions, the lower the benefits of the Complete Legal Segregation

Model over the Futures Model. However, this benefit afforded the

customer needs to be balanced against the cost to the DCO of insuring

against the uncertainty.\275\ Both the capital costs and associated

benefits of the LSOC Model relative to the Futures Model will tend to

be lower to the extent customers are likely to move their positions in

advance of an FCM default and higher to the extent customers are

unlikely to be able to do so. Differing assumptions about customer

mobility in advance of default are, therefore, likely to have smaller

implications for the relative costs and benefits between approaches

than they do for the Risk Costs considered in isolation.

---------------------------------------------------------------------------

\275\ In addition, and as discussed above, section 724(a) of the

Dodd-Frank Act added a new paragraph (f) to section 4(d) of the CEA,

which requires that neither an FCM nor a DCO may not use the

collateral of one customer to cover the obligations of another

customer or the obligations of the FCM or the DCO.

---------------------------------------------------------------------------

A distinct question in evaluating Risk Cost is how to translate a

margin or guaranty fund increase into a cost increase. A customer that

is required to post an additional $100 of margin is not adversely

affected in the amount of $100. Moreover, the cost to the customer is,

at least in part, offset by the benefit to the DCO. The cost to a

customer of a margin increase of $100 is the difference between the

gain he or she would have received by retaining that $100, and the

return he or she will receive on the asset while it is on deposit with

the FCM or DCO. For example, the customer might invest the $100 in

buying and holding grain over the pendency of the swap if the initial

margin were not increased, while he or she is limited to the return on

assets the DCO will accept as margin payment (e.g., the T-bill rate)

under the new, higher margins. The exact difference in rate of returns

is dependent on the individual customer's investment options as well as

his/her risk tolerance, and hence is difficult to calculate precisely.

Offsetting this cost are the statutory goal of protecting customer

funds and the gain to the DCO of having additional assets available in

the event of a combined Cleared Swaps Customer and FCM default, which

may enable it to obtain a higher rate of return on some of its other

assets.\276\ Similarly, the cost to an FCM of a guaranty fund

contribution increase is equal to the difference in return between

acceptable instruments for deposit to the guaranty fund and the FCM's

potential return on those additional funds if they were not deposited

to the guaranty fund.\277\

---------------------------------------------------------------------------

\276\ An additional offset to this cost is the value that

customers assign to the increased safety of their collateral from

Fellow-Customer Risk, as discussed in section VII.B.2.

\277\ There will also be an implicit cost to the FCM reflecting

the risk that the contributed assets will need to be used by the DCO

to cover losses in a default situation.

---------------------------------------------------------------------------

c. Effects on Likelihood That Customer Swaps Positions Will Be

``Ported'' to New FCMs Rather Than Liquidated in the Event of an FCM

Default

According to several commenters, a central issue to consider when

designing a customer collateral protection regime is the ability of

customers to ``port,'' i.e., transfer, their swaps positions to a

solvent FCM in the event that their current FCM defaults.\278\

Following a default by an FCM, the swaps positions of the FCM's

customers either have to be moved to another FCM, or closed. Moving a

position to another FCM allows the DCO to maintain its net position in

that contract at zero, which is generally a goal of a DCO. It also

relieves the customer of the necessity of reestablishing a position,

which potentially can be costly, especially in a stressed economic

state.\279\ Finally, according to commenters, the ability to port

rather than liquidate customer positions can have important systematic

benefits for the market at large, because the forced liquidation of the

swaps cleared by a major FCM could have severe disruptive effects on

prices and market conditions.\280\

---------------------------------------------------------------------------

\278\ Black Rock at 2; Fidelity at 5; FIA at 4; MFA at 4.

\279\ See ISDA February 16, 2011 Comment on ANPR at 2.

\280\ See, e.g., id. at 2-4; and MFA at 4.

---------------------------------------------------------------------------

Rules governing customer collateral accounts have an indirect, but

potentially important, effect on the likelihood of successful porting

in the event of an FCM default. If swaps positions are transferred to a

new FCM, the new FCM will have to add to its customer account with the

DCO enough collateral to secure the ``ported'' swaps. The most ready

source of such collateral is the customer account of the defaulting

FCM, which already contains collateral securing the relevant swaps.

However, if collateral from the defaulting FCM's customer account

cannot be transferred, then porting of market positions requires

customers to, at least temporarily, provide the new FCM with new

collateral. This is, at best, a burden, and may, in some cases, make

porting infeasible--particularly the prompt porting of numerous

customers with varied financial resources and liquidity.

From the perspective of porting, the Complete Legal Segregation

Model has several related advantages over the Futures Model in

circumstances of a double default. As discussed above, under the

Futures Model, if even a

[[Page 6368]]

single customer is in default, the DCO is entitled to as much of the

customer account as is necessary to make up its loss. As a result, the

DCO has incentives to postpone transfer of the customer account until

the full ramifications of the customer default--and thus the size of

the DCO's claim against the account--are resolved. By contrast, under

Complete Legal Segregation, the DCOs claim against the customer account

is limited by law to that portion of the account attributable to

individual customers in default. The DCO will therefore have little or

no incentive to resist transfer of that portion of the account

attributable to other customers. At the same time, the Complete Legal

Segregation Model, unlike the Futures Model, provides a legal framework

for attributing the value of the customer account to individual

customers. Further, it requires that FCMs provide DCOs with the

necessary information and that DCOs make the attribution at least once

daily, so as to be prepared for a possible FCM default. As a result,

the Complete Legal Segregation Model, has clear advantages over the

Futures Model in terms of facilitating the transfer of the collateral

of non-defaulting customers in circumstances where one or more

customers have defaulted.\281\

---------------------------------------------------------------------------

\281\ For a more detailed discussion of the operation of the

segregation models in an FCM bankruptcy, see supra section I.D.

---------------------------------------------------------------------------

Because of the infrequent occurrence of double default situations

it is not possible to predict how frequently Complete Legal Segregation

will permit porting in circumstances where porting would not be

possible, or would be delayed, under the Futures Model. Nevertheless,

the structural advantages of Complete Legal Segregation for purposes of

facilitating porting, and the analysis in ISDA's comment, imply that

this is an important benefit of this model.

d. Effects on Incentives for DCOs and Customers to Monitor and Control

Risky Behavior by FCMs

CME and other commenters have argued that the Complete Legal

Segregation Model could potentially reduce the incentives of individual

customers to carefully evaluate clearing FCMs and only do business with

the least risky.\282\ In effect, they argue that because the financial

condition of the FCM, and of the FCM's other customers, will be less

relevant to the customer's exposure to loss in the event of a fellow

customer's default than under the Futures Model, the customer will

devote less effort to monitoring the FCM and its other customers.

---------------------------------------------------------------------------

\282\ Second Roundtable Tr. at 253, l.17; FIA at 5; Newedge at

4. Cf. MFA at 4-5; BlackRock at 8.

---------------------------------------------------------------------------

However, while it is possible that the protection against Fellow-

Customer Risk provided by the Complete Legal Segregation Model may

cause customers, on average, to devote less effort to monitoring the

activities of their respective FCMs than under the Futures Model, that

incentive is not removed. For example, customers remain exposed to

Operational Risk.

Moreover, the Complete Legal Segregation Model creates offsetting

increased monitoring incentives on the DCO and its member FCMs, to the

benefit of customers. Because of the increased likelihood that a

customer default would impact the guaranty fund under the Complete

Legal Segregation Model, increased incentives exist to protect that

fund through more careful monitoring by the suppliers of the guaranty

fund and their agent (the DCO). Indeed, commenters observe that the

availability of fellow-customer collateral as a buffer reduces the

incentives of DCOs to provide vigorous oversight.\283\ The net effect

of these incentive changes on the incentive to monitor is difficult to

quantify. However, the basic economics of monitoring suggest that there

are efficiency gains to centralizing monitoring in a small number of

parties.\284\ This is because of ``free rider'' effects associated with

diffuse exposure to risk of loss. When the risk of loss from the

activities of a firm, such as an FCM, is spread over a large number of

agents, each individual agent gains little from devoting resources to

monitoring the firm relative to the total potential benefit of

monitoring to the affected agents as a group.\285\ This effect is

compounded by an information effect; even if the incentive exists, it

is difficult for individual customers to gain access to real-time

information about the financial condition of the FCM, and even more so

to gain real-time information about the financial condition of their

fellow customers. In contrast, the DCO is in a position to obtain good

information about the financial condition of FCMs and customers since,

via its rules, it can require FCMs to provide such information as a

condition for becoming and remaining clearing members. Based on these

considerations, there is reason to believe that, while Complete Legal

Segregation may reduce incentives for customers to monitor their FCMs,

it will increase incentives for monitoring of FCMs by DCOs and, on

balance is likely to increase the effectiveness and efficiency with

which risk taking by clearing FCMs is monitored.

---------------------------------------------------------------------------

\283\ Blackrock at 8; Freddie Mac at 2; Vanguard at 5.

\284\ See e.g., Kevin Dowd, Re-Examining the Case for Government

Deposit Insurance, 59 S. Econ. J. 363, 370 (1993).

\285\ See, e.g., Andrei Shleifer and Robert W. Vishny, A Survey

of Corporate Governance, 52 J. Fin. 737, 753 (1997) (discussing

effect of ``free rider'' issues on monitoring in context of

corporate governance).

---------------------------------------------------------------------------

e. Operational Costs

As discussed above, in order for the Complete Legal Segregation

Model to work better than the Futures Model in the event of a double

default, the DCO must have information that will enable it to attribute

the assets in the defaulting FCM's customer account to individual

customers of the FCM.\286\ Moreover, because the occurrence of a double

default is rare, and because an FCM in the process of default may not

(despite its regulatory obligations) be able to provide a DCO with

accurate and timely information on its customers, section 22.11

requires clearing FCMs to provide the necessary information to DCOs on

at least a daily basis. The Commission notes that section 22.12

similarly requires DCOs to use this information to calculate and record

the amount of collateral required to support each customer's Cleared

Swaps transactions on at least a daily basis. This daily information

processing is not provided under the Futures Model and will add to the

operational costs of clearing.

---------------------------------------------------------------------------

\286\ See discussion at section VII.A.2; supra n.224.

---------------------------------------------------------------------------

The NPRM discussed the likely magnitude of increased operational

costs associated with the more extensive information requirement.\287\

The Commission noted there that one estimate suggested the operational

costs of the Complete Legal Segregation Model (relative to the Futures

Model) were likely to be slightly less than $1 million per year per

FCM, with one-time costs of about $700,000.\288\ A DCO's cost of

accommodating this additional information was estimated to be of the

same general magnitude. Another comment observed that the operational

costs would be the same across all models being considered given a

requirement for DCOs to collect margin on a gross basis.\289\ The

Commission

[[Page 6369]]

received no alternative quantitative estimates in response to the

NPRM,\290\ although Fidelity suggested that some of the operational

costs associated with Complete Legal Segregation will be incurred

regardless of the segregation model that is chosen because other CFTC

rulemakings (i.e., the real time reporting rulemaking and the reporting

of certain post-enactment swap transactions rulemaking) require similar

reporting.\291\

---------------------------------------------------------------------------

\287\ 76 FR at 33845-33846.

\288\ Id. (citing ISDA estimates for operational costs received

in response to the ANPR).

\289\ LCH at 2 (``If the Commission adopts [the gross margining

requirement for DCOs], any DCO offering any swaps clearing service

under any of the models outlined by the Commission in the Proposed

Rulemaking will be required to track margin on an individual client

basis and FCMs will be required to do the same.''). See also 76 FR

at 69374-76. In addition, some individual customer information

already resides at the DCO. See CME at 9 (``At the end of each

trading day, CME Clearing calculates, for each FCM's cleared swaps

customer account* * * the net margin requirement for each customer

in the account.'').

\290\ In fact, FHLB states that the costs and risks associated

with the additional operational complexity ``may be difficult to

quantify.'' FHLB at 4.

\291\ Fidelity at 6.

---------------------------------------------------------------------------

Based on estimates by CME and ISDA described above, the expected

scale of the cleared swaps market will require hundreds of billions of

dollars of collateral to adequately secure swaps positions under any

segregation model, and will thus potentially expose this collateral to

some degree of Fellow-Customer Risk. In light of the projected

magnitude of the customer funds at stake, the Commission believes that

operational costs of the Complete Legal Segregation Model are a

relatively minor factor in choosing a model that would protect customer

funds consistent with section 4d(f) of the CEA, and that this would be

true even if operational costs proved to be considerably higher than

the estimate described in the NPRM.

f. Additional Potential Sources of Costs and Benefits Arising From

Complete Legal Segregation

As discussed in section I.D.1 above, the Complete Legal Segregation

Model provides a significant advantage compared to the Futures Model

with respect to fostering transfer. Specifically, under the Complete

Legal Segregation Model, information about the Cleared Swaps Customers

as a whole, and about each individual Cleared Swaps Customer's

positions, are transmitted to the DCO every day, an information flow

(and store) that is not present in the Futures Model. Thus, in the

event of an FCM bankruptcy, each DCO will have important information on

a customer by customer basis that can be used to facilitate and

implement transfers, thereby making the DCO less reliant upon the FCM

for that information.

3. Application to CEA Section 15(a) Considerations

a. Protection of Market Participants

As discussed above, the primary benefit of the Complete Legal

Segregation Model is the protection of Cleared Swaps Customers from the

risk of losing the value of their collateral as a result of a double

default. Based on estimates by CME and ISDA, the cleared swaps market

is likely to require upwards of $500 billion in customer collateral

regardless of the segregation model chosen by the Commission.\292\

These assets will be potentially exposed to Fellow-Customer Risk. It is

not possible to reliably quantify the likelihood of fellow customer

losses in the absence of Complete Legal Segregation for reasons

discussed in section VII.B.2.a. above. In addition, the magnitude of

Fellow-Customer Risk in particular default situations will be affected

by the extent to which customers foresee or anticipate a default and

accordingly move their accounts to other FCMs; and the extent to which

a default is foreseeable or anticipated will vary in different

defaults. The risk cost imposed on DCOs and their members by Complete

Legal Segregation will be affected by the foreseeability of default in

a roughly parallel way.

---------------------------------------------------------------------------

\292\ See supra n. 243.

---------------------------------------------------------------------------

Notwithstanding these uncertainties, swaps users who participated

in this rulemaking process, with only limited exceptions, consistently

placed great value on protection against Fellow-Customer Risk and

supported either Complete Legal Segregation or stronger measures to

provide such protection despite estimates of high dollar costs in the

form of the capital cost of higher margins or guaranty funds.\293\

Since swaps users most likely ultimately will bear, directly or

indirectly, most of the dollar costs of protection against Fellow-

Customer Risk, the Commission places substantial weight on their

valuation of such protection.

---------------------------------------------------------------------------

\293\ See, e.g., Second Roundtable Tr. at 245-249; Second

Roundtable Tr. at 140, l.12 (Mr. MacFarlane stating that ``Tudor

would happily pay the incremental costs, both in terms of collateral

and operational costs [for greater protection].'').

---------------------------------------------------------------------------

b. Efficiency, Competitiveness, and Financial Integrity of Markets

i. Dollar Costs and Swaps Usage

Complete Legal Segregation could add materially to the dollar cost

of clearing swaps, affecting competitiveness in particular.\294\

Moreover, there were estimates (albeit somewhat speculative estimates)

that Complete Legal Segregation might require on the order of 70%

higher margins, 100% higher DCO guaranty funds, or some combination of

smaller increases in both. In light of the expected large scale of the

cleared swaps market, these estimates imply industry wide increments in

margin on the order of $500 billion or more, increments in guaranty

funds of over $100 billion, or a combination of smaller increments of

both.\295\ The cost of these measures would not be the dollar amount of

margin or guaranty fund contributions, but, rather, the opportunity

cost of using capital for these purposes rather than other business

purposes. Considerable uncertainty is added to the evaluation of these

estimates of the dollar cost of Complete Legal Segregation by the fact

that DCOs do not yet have experience clearing under the Dodd-Frank

regime (although they do currently clear swaps pursuant to the rules of

the exchanges) and by LCH's observation that, under the method it uses

to determine needed financial resources to protect against default, the

same level of resources is required under both Complete Legal

Segregation and the Futures Model.\296\

---------------------------------------------------------------------------

\294\ This analysis is also informed by the extent to which

clearing certain types of swaps is mandatory, as well as by the cost

already incurred in the uncleared swaps market.

\295\ See supra n. 243.

\296\ See supra n. 269.

---------------------------------------------------------------------------

If Complete Legal Segregation results in higher dollar costs to

swaps users, this may discourage some use of swaps for hedging or other

beneficial economic uses. The Commission does not have precise

information about the price responsiveness of swaps usage that would

make it possible to quantify this effect. A countervailing

consideration is that comments to this rulemaking indicate that

customers are already transacting in uncleared swaps, and are paying

for full segregation of the collateral they are posting because of the

importance to them of protection of that collateral against the

defaults of others. Moreover, as some commenters noted, concern over

exposure to Fellow-Customer Risk that they currently pay for and

receive could discourage swaps usage in the absence of Complete Legal

Segregation or other protection against such risk.\297\ Comments by

swaps users indicated that such effects would occur though they did not

provide quantitative estimates. The evidence from the comments,

specifically the statements of swap users regarding their willingness

to pay for legal segregation, suggests that the demand-enhancing

[[Page 6370]]

effects of the increased safety associated with Complete Legal

Segregation are larger than the demand-reducing effects of higher

margins and/or fees associated with it.\298\

---------------------------------------------------------------------------

\297\ See e.g., Second Roundtable at 141, l.3 (Mr. MacFarlane

stating''the uncertainty that's created by not knowing who we're

sharing risk in the omnibus pool would cause us to pull our capital

back from the market.'').

\298\ See e.g., Second Roundtable Tr. at 245 (Mr. Thum stating

that ``we're prepared to bear the cost to provide for the margin

protection that our clients need.'').

---------------------------------------------------------------------------

ii. Financial Integrity of Markets

Complete Legal Segregation is likely to have several effects on the

financial integrity of markets, the specifics of which are discussed in

more detail under other headings.\299\ As explained above, Complete

Legal Segregation is expected to lead to a net improvement in the

monitoring of risky behavior by FCMs, with the effects of increased

incentives for such monitoring by DCOs outweighing the effects of

reduced incentives for such monitoring by customers. This net

improvement in monitoring of FCMs can be expected to enhance the

financial integrity of the markets in which clearing FCMs participate.

---------------------------------------------------------------------------

\299\ See discussion at sections VII.B.2.b, VII.B.2.c,

VII.B.2.d, and VII.B.3.b.i.

---------------------------------------------------------------------------

By facilitating porting, Complete Legal Segregation is expected to

enhance the financial integrity of cleared swaps markets in financial

stress situations involving FCMs by reducing the likelihood that a

double default will result in the need to liquidate large volumes of

swaps positions with resulting costs to customers and the DCO and the

potential to seriously disrupt the market at large.

By prohibiting DCOs from using the collateral of non-defaulting

customers in a double default situation, Complete Legal Segregation

potentially could have a negative effect on the financial integrity of

DCOs by reducing the financial resources available to apply to losses

arising from double defaults. However, the record indicates that DCOs

would substitute additional resources in the form of higher margin

levels, larger guaranty funds, or a combination of both as need to

maintain the ability to cover losses from FCM and customer

defaults.\300\ Importantly, prohibiting DCOs from using the collateral

of non-defaulting customers to protect a DCO from risks within a DCO's

control is consistent with the statute's goal of protecting customer

funds. As a result, the loss of the ability to rely on the collateral

of non-defaulting customers would be expected to translate to higher

dollar costs than under the Futures Model rather than reduced financial

integrity.

---------------------------------------------------------------------------

\300\ See supra n. 255.

---------------------------------------------------------------------------

c. Price Discovery

Complete Legal Segregation is not expected to have a significant

effect on price discovery under normal market conditions. In

circumstances of a double default involving a large FCM, Complete Legal

Segregation may help protect price discovery in the swaps markets by

reducing the likelihood of the need for a large scale liquidation of

swaps positions that would disrupt normal pricing.

d. Sound Risk Management Practices

As discussed above,\301\ Complete Legal Segregation is expected to

produce a net improvement in the monitoring of risky behavior by FCMs.

While there may be some reduction in the incentives to Cleared Swaps

Customers to monitor their FCMs, there is a corresponding increase in

the incentives by DCOs to do so. There are efficiency gains in

centralizing this responsibility in a small number of parties, and the

DCOs (as membership organizations) have greater access to information

from their Clearing Members, in contrast to Cleared Swaps Customers,

who (due to considerations of confidentiality) may have little ability

to obtain information about an FCM's activities with respect to fellow-

customers.

---------------------------------------------------------------------------

\301\ See supra section VII.B.2.d.

---------------------------------------------------------------------------

e. Other Public Interest Considerations

By better protecting Cleared Swaps Customer Collateral against

fellow-customer risk, the LSOC Model will enhance compliance with the

values of CEA Section 4d(f), which requires that the property of each

individual customer be protected.

C. Conclusion

The Commission has carefully considered the available evidence

regarding the costs and benefits of Complete Legal Segregation Model

and has concluded that the Complete Legal Segregation Model best

accomplishes the statutory objective of protecting customer deposits.

In terms of benefits, customers have much greater assurance of the

safety of their margin deposits against Fellow-Customer Risk under the

Complete Legal Segregation Model than under the Futures Model. In

addition, Complete Legal Segregation will facilitate porting rather

than liquidation of customer positions in double default situations

with associated benefits to customers and, for defaults of large FCMs,

reduced risk of disruption of markets as a result of large volumes of

customer positions. Complete Legal Segregation also will increase

incentives for DCOs to monitor risky behavior by member FCMs and that

this effect can be expected to outweigh reduced incentives for

customers to monitor their FCMs. In determining that Complete Legal

Segregation is the appropriate model, the Commission has placed weight

on, among other considerations, the comments of many swaps users that

they place great value on assurance of their margins and their

positions and are willing to incur substantial costs to achieve such

assurance and on comments by a range of market participants placing

great importance on porting of customer positions as a response to FCM

defaults.

On the cost side, several DCOs that employ the Futures Model for

the futures-side of their business and other commenters argued that

Complete Legal Segregation will require some combination of

substantially higher margin levels and guaranty fund contributions than

the Futures Model. However, one major DCO reported that, under the

approach it uses to establish margin and guaranty fund level, these

levels would be the same under Complete Legal Segregation and the

Futures Model. Complete Legal Segregation will impose some operational

costs but such costs are small enough to be a minor consideration

relative to the other aspects of cost; e.g., the potential increases in

margins and guaranty funds.

The Commission notes that, as discussed above, there are a number

of sources of uncertainty in evaluating the costs and benefits of

Complete Legal Segregation, such as market participants not yet having

experience clearing swaps under the Dodd-Frank legal regime and the

infrequency of double defaults. However, the costs and benefits of all

the models considered by the Commission are subject to similar

uncertainties as to the probability of double defaults and customer

behavior in anticipation of such defaults. Accordingly, such

uncertainties do not militate against the selection of the Complete

Legal Segregation Model as the preferred alternative.

VIII. Related Matters

A. Paperwork Reduction Act

1. Introduction

Sections 22.2(g), 22.5(a), 22.11, 22.12, and 22.16 of these rules

impose new information disclosure and recordkeeping requirements that

constitute the collection of information

[[Page 6371]]

within the meaning of the Paperwork Reduction Act of 1995

(``PRA'').\302\ Under 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.\303\ The

Commission therefore has requested that the Office of Management and

Budget (``OMB'') assign a control number for this collection of

information. The Commission has also submitted the NPRM, this final

rule release, and supporting documentation to OMB for review in

accordance with 44 U.S.C. 3507(d) and 5 CFR 1320.11. The title for this

collection of information is ``Disclosure and Retention of Certain

Information Relating to Cleared Swaps Customer Collateral,'' OMB

Control Number 3038-0091. This collection of information will be

mandatory. The information in question will be held by private entities

and, to the extent it involves consumer financial information, may be

protected under Title V of the Gramm-Leach-Bliley Act as amended by the

Dodd-Frank Act.\304\ OMB has not yet approved the collection of this

information.

---------------------------------------------------------------------------

\302\ 44 U.S.C. 3501 et seq.

\303\ Id.

\304\ See generally, Notice of Proposed Rulemaking, Privacy of

Consumer Financial Information; Conforming Amendments Under Dodd-

Frank Act, 75 FR 66014, Oct. 27, 2010.

---------------------------------------------------------------------------

2. Comments Received on Collection of Information Proposed in NPRM

Sections 22.2(g), 22.5(a), 22.11, 22.12, and 22.16 and estimates of

the expected information collection burden were published for comment

in the NPRM. The collection of information required by the final

versions of these rules and the associated information collection

burden is identical to that of the rules as proposed. Comments were

received regarding proposed sections 22.5(a), 22.11, 22.12, and 22.16.

The substance of these comments and the Commission's response to them

is set forth above in sections IV.E, IV.K, IV.L., and IV.P of this

preamble.

In addition, in response to a comment on the definition of

``Cleared Swaps Customer Collateral'' by the FIA requesting that the

Commission confirm that the term ``Cleared Swaps Customer Collateral''

includes all assets provided to an FCM by a Cleared Swaps Customer,

including amounts in excess of the amount required to margin a Cleared

Swap by the relevant DCO, the Commission has included in the final rule

a new permissive provision, subsection 22.13(c)(2). Subsection

22.13(c)(2) provides that an FCM may transmit to a DCO collateral

posted by a Cleared Swaps Customer in excess of the amount required by

the DCO if (1) the rules of the DCO permit such transmission; and (2)

the DCO provides a mechanism by which the FCM is able to, and maintains

rules requiring the FCM to, identify each business day, for each

Cleared Swaps Customer, the amount of collateral posted in excess of

the amount required by the DCO. This rule subsection may have the

effect of causing some FCMs to perform a daily computation of the

amount of collateral posted in excess of the amount required by the

relevant DCO. In the view of the Commission, this provision does not

materially change, or add to the burden of, the information collection

required by the Part 22 rules as proposed. This is so because the

computation of the amount of collateral posted in excess of the amount

required by the relevant DCO will be performed using same data sources

that would be used for the information collections required by

subsections 22.2(g), 22.11, and 22.12. Moreover, this burden would only

be imposed (and enforced) by voluntary action of the DCO in permitting,

and the FCM in transmitting, such additional collateral.

There were no comments specifically addressing the Commission's

numerical estimates of information collection burden in section VII.B.2

of the NPRM.

B. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') \305\ requires that

agencies consider whether their rules will have a significant economic

impact on a substantial number of small entities and, if so, provide a

regulatory flexibility analysis of that impact. These Part 22 rules and

amendments to Part 190 apply to DCOs and FCMs. In the NPRM, the

Chairman, pursuant to section 605(b) of the RFA, 5 U.S.C. 605(b),

certified on behalf of the Commission that these rules and amendments

will not have a significant economic impact on a substantial number of

small entities based on previous determinations by the Commission that

DCOs and FCMs are not small entities for purposes of the RFA.\306\

---------------------------------------------------------------------------

\305\ 5 U.S.C. 601 et seq.

\306\ See 66 FR 45605, 45609 (Aug. 29, 2001) (DCOs); 47 FR

18618, 18619-20 (April 30, 1982) (FCMs).

---------------------------------------------------------------------------

List of Subjects

17 CFR Part 22

Brokers, Clearing, Consumer protection, Reporting and recordkeeping

requirements, Swaps.

17 CFR Part 190

Bankruptcy, Brokers, Commodity futures, Reporting and recordkeeping

requirements, Swaps.

IX. Text of Final Rules

For the reasons stated in this release, the Commission hereby

amends Chapter 17 as follows:

0

1. Add Part 22 to read as follows:

PART 22--CLEARED SWAPS

Sec.

22.1 Definitions.

22.2 Futures Commission Merchants: Treatment of Cleared Swaps

Customer Collateral.

22.3 Derivatives Clearing Organizations: Treatment of Cleared Swaps

Customer Collateral.

22.4 Futures Commission Merchants and Derivatives Clearing

Organizations: Permitted Depositories.

22.5 Futures Commission Merchants and Derivatives Clearing

Organizations: Written Acknowledgement.

22.6 Futures Commission Merchants and Derivatives Clearing

Organizations: Naming of Cleared Swaps Customer Accounts.

22.7 Permitted Depositories: Treatment of Cleared Swaps Customer

Collateral.

22.8 Situs of Cleared Swaps Customer Accounts.

22.9 Denomination of Cleared Swaps Customer Collateral and Location

of Depositories.

22.10 Application of other Regulatory Provisions.

22.11 Information to be Provided Regarding Customers and their

Cleared Swaps.

22.12 Information to be Maintained Regarding Cleared Swaps Customer

Collateral.

22.13 Additions to Cleared Swaps Customer Collateral.

22.14 Futures Commission Merchant Failure to Meet a Customer Margin

Call in Full.

22.15 Treatment of Cleared Swaps Customer Collateral on an

Individual Basis.

22.16 Disclosures to Customers.

Authority: 7 U.S.C. 1a, 6d, 7a-1 as amended by Pub. L. 111-203,

124 Stat. 1376.

Sec. 22.1 Definitions.

For the purposes of this part:

Cleared Swap. This term refers to a transaction constituting a

``cleared swap'' within the meaning of section 1a(7) of the Act.

(1) This term shall exclude any swap (along with money, securities,

or other property received to margin, guarantee, or secure such a swap)

that, pursuant to a Commission rule, regulation, or order, is (along

with such money, securities, or other property) commingled with a

commodity future or option (along with money, securities, or other

property

[[Page 6372]]

received to margin, guarantee, or secure such a future or option) that

is segregated pursuant to section 4d(a) of the Act.

(2) This term shall include any trade or contract (along with

money, securities or other property received to margin, guarantee, or

secure such a trade or contract), that

(i) Would be required to be segregated pursuant to section 4d(a) of

the Act, or

(ii) Would be subject to Sec. 30.7 of this chapter, but which is,

in either case, pursuant to a Commission rule, regulation, or order (or

a derivatives clearing organization rule approved in accordance with

Sec. 39.15(b)(2) of this chapter), commingled with a swap (along with

money, securities, or other property received to margin, guarantee, or

secure such a swap) in an account segregated pursuant to section 4d(f)

of the Act.

Cleared Swaps Customer. This term refers to any person entering

into a Cleared Swap, but shall exclude:

(1) Any owner or holder of a Cleared Swaps Proprietary Account with

respect to the Cleared Swaps in such account; and

(2) A clearing member of a derivatives clearing organization with

respect to Cleared Swaps cleared on that derivatives clearing

organization. A person shall be a Cleared Swaps Customer only with

respect to its Cleared Swaps.

Cleared Swaps Customer Account. This term refers to any account for

the Cleared Swaps of Cleared Swaps Customers and associated Cleared

Swaps Customer Collateral that:

(1) A futures commission merchant maintains on behalf of Cleared

Swaps Customers (including, in the case of a Collecting Futures

Commission Merchant, the Cleared Swaps Customers of a Depositing

Futures Commission Merchant) or

(2) A derivatives clearing organization maintains for futures

commission merchants on behalf of Cleared Swaps Customers thereof.

Cleared Swaps Customer Collateral. (1) This term means all money,

securities, or other property received by a futures commission merchant

or by a derivatives clearing organization from, for, or on behalf of a

Cleared Swaps Customer, which money, securities, or other property:

(i) Is intended to or does margin, guarantee, or secure a Cleared

Swap; or

(ii) Constitutes, if a Cleared Swap is in the form or nature of an

option, the settlement value of such option.

(2) This term shall also include accruals, i.e., all money,

securities, or other property that a futures commission merchant or

derivatives clearing organization receives, directly or indirectly,

which is incident to or results from a Cleared Swap that a futures

commission merchant intermediates for a Cleared Swaps Customer.

Cleared Swaps Proprietary Account. (1) This term means an account

for Cleared Swaps and associated collateral that is carried on the

books and records of a futures commission merchant for persons with

certain relationships with that futures commission merchant,

specifically:

(i) Where such account is carried for a person falling within one

of the categories specified in paragraph (2) of this definition, or

(ii) Where ten percent or more of such account is owned by a person

falling within one of the categories specified in paragraph (2) of this

definition, or

(iii) Where an aggregate of ten percent or more of such account is

owned by more than one person falling within one or more of the

categories specified in paragraph (2) of this definition.

(2) The relationships to the futures commission merchant referred

to in paragraph (1) of this definition are as follows:

(i) Such individual himself, or such partnership, corporation or

association itself;

(ii) In the case of a partnership, a general partner in such

partnership;

(iii) In the case of a limited partnership, a limited or special

partner in such partnership whose duties include:

(A) The management of the partnership business or any part thereof;

(B) The handling, on behalf of such partnership, of:

(1) The Cleared Swaps of Cleared Swaps Customers or

(2) The Cleared Swaps Customer Collateral;

(C) The keeping, on behalf of such partnership, of records

pertaining to

(1) the Cleared Swaps of Cleared Swaps Customers or

(2) the Cleared Swaps Customer Collateral; or

(D) The signing or co-signing of checks or drafts on behalf of such

partnership;

(iv) In the case of a corporation or association, an officer,

director, or owner of ten percent or more of the capital stock of such

organization;

(v) An employee of such individual, partnership, corporation or

association whose duties include:

(A) The management of the business of such individual, partnership,

corporation or association or any part thereof;

(B) The handling, on behalf of such individual, partnership,

corporation, or association, of the Cleared Swaps of Cleared Swaps

Customers or the Cleared Swaps Customer Collateral;

(C) The keeping of records, on behalf of such individual,

partnership, corporation, or association, pertaining to the Cleared

Swaps of Cleared Swaps Customers or the Cleared Swaps Customer

Collateral; or

(D) The signing or co-signing of checks or drafts on behalf of such

individual, partnership, corporation, or association;

(vi) A spouse or minor dependent living in the same household of

any of the foregoing persons;

(vii) A business affiliate that, directly or indirectly, controls

such individual, partnership, corporation, or association; or

(viii) A business affiliate that, directly or indirectly, is

controlled by or is under common control with, such individual,

partnership, corporation or association. Provided, however, that an

account owned by any shareholder or member of a cooperative association

of producers, within the meaning of section 6a of the Act, which

association is registered as a futures commission merchant and carries

such account on its records, shall be deemed to be a Cleared Swaps

Customer Account and not a Cleared Swaps Proprietary Account of such

association, unless the shareholder or member is an officer, director,

or manager of the association.

Clearing Member. This term means 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.

Collecting Futures Commission Merchant. A futures commission

merchant that carries Cleared Swaps on behalf of another futures

commission merchant and the Cleared Swaps Customers of the latter

futures commission merchant, and as part of carrying such Cleared

Swaps, collects Cleared Swaps Customer Collateral.

Commingle. To commingle two or more items means to hold such items

in the same account, or to combine such items in a transfer between

accounts.

Customer. This term means any customer of a futures commission

merchant, other than a Cleared Swaps Customer, including, without

limitation:

(1) Any ``customer'' or ``commodity customer'' within the meaning

of Sec. 1.3 of this chapter; and

[[Page 6373]]

(2) Any ``foreign futures or foreign options customer'' within the

meaning of Sec. 30.1(c) of this chapter.

Depositing Futures Commission Merchant. A futures commission

merchant that carries Cleared Swaps on behalf of its Cleared Swaps

Customers through another futures commission merchant and, as part of

carrying such Cleared Swaps, deposits Cleared Swaps Customer Collateral

with such futures commission merchant.

Permitted Depository. This term shall have the meaning set forth in

Sec. 22.4 of this part.

Segregate. To segregate two or more items is to keep them in

separate accounts, and to avoid combining them in the same transfer

between two accounts.

Sec. 22.2 Futures Commission Merchants: Treatment of Cleared Swaps

and Associated Cleared Swaps Customer Collateral.

(a) General. A futures commission merchant shall treat and deal

with the Cleared Swaps of Cleared Swaps Customers and associated

Cleared Swaps Customer Collateral as belonging to Cleared Swaps

Customers.

(b) Location of Cleared Swaps Customer Collateral. (1) A futures

commission merchant must segregate all Cleared Swaps Customer

Collateral that it receives, and must either hold such Cleared Swaps

Customer Collateral itself as set forth in paragraph (b)(2) of this

section, or deposit such collateral into one or more Cleared Swaps

Customer Accounts held at a Permitted Depository, as set forth in

paragraph (b)(3) of this section.

(2) If a futures commission merchant holds Cleared Swaps Customer

Collateral itself, then the futures commission merchant must:

(i) Physically separate such collateral from its own property;

(ii) Clearly identify each physical location in which it holds such

collateral as a ``Location of Cleared Swaps Customer Collateral'' (the

``FCM Physical Location'');

(iii) Ensure that the FCM Physical Location provides appropriate

protection for such collateral; and

(iv) Record in its books and records the amount of such Cleared

Swaps Customer Collateral separately from its own funds.

(3) If a futures commission merchant holds Cleared Swaps Customer

Collateral in a Permitted Depository, then:

(i) The Permitted Depository must qualify pursuant to the

requirements set forth in Sec. 22.4 of this part, and

(ii) The futures commission merchant must maintain a Cleared Swaps

Customer Account with each such Permitted Depository.

(c) Commingling. (1) A futures commission merchant may commingle

the Cleared Swaps Customer Collateral that it receives from, for, or on

behalf of multiple Cleared Swaps Customers.

(2) A futures commission merchant shall not commingle Cleared Swaps

Customer Collateral with either of the following:

(i) Funds belonging to the futures commission merchant, except as

expressly permitted in paragraph (e)(3) of this section; or

(ii) Other categories of funds belonging to Customers of the

futures commission merchant, including customer funds (as Sec. 1.3 of

this chapter defines such term) and the foreign futures or foreign

options secured amount (as Sec. 1.3 of this chapter defines such

term), except as expressly permitted by Commission rule, regulation, or

order, or by a derivatives clearing organization rule approved in

accordance with Sec. 39.15(b)(2) of this chapter.

(d) Limitations on Use. (1) No futures commission merchant shall

use, or permit the use of, the Cleared Swaps Customer Collateral of one

Cleared Swaps Customer to purchase, margin, or settle the Cleared Swaps

or any other trade or contract of, or to secure or extend the credit

of, any person other than such Cleared Swaps Customer. Cleared Swaps

Customer Collateral shall not be used to margin, guarantee, or secure

trades or contracts of the entity constituting a Cleared Swaps Customer

other than in Cleared Swaps, except to the extent permitted by a

Commission rule, regulation or order.

(2) A futures commission merchant may not impose or permit the

imposition of a lien on Cleared Swaps Customer Collateral, including

any residual financial interest of the futures commission merchant in

such collateral, as described in paragraph (e)(4) of this section.

(3) A futures commission merchant may not include, as Cleared Swaps

Customer Collateral,

(i) Money invested in the securities, memberships, or obligations

of any derivatives clearing organization, designated contract market,

swap execution facility, or swap data repository, or

(ii) Money, securities, or other property that any derivatives

clearing organization holds and may use for a purpose other than those

set forth in Sec. 22.3 of this part.

(e) Exceptions. Notwithstanding the foregoing:

(1) Permitted Investments. A futures commission merchant may invest

money, securities, or other property constituting Cleared Swaps

Customer Collateral in accordance with Sec. 1.25 of this chapter,

which section shall apply to such money, securities, or other property

as if they comprised customer funds or customer money subject to

segregation pursuant to section 4d(a) of the Act and the regulations

thereunder.

(2) Permitted Withdrawals. Such share of Cleared Swaps Customer

Collateral as in the normal course of business shall be necessary to

margin, guarantee, secure, transfer, adjust, or settle a Cleared Swaps

Customer's Cleared Swaps with a derivatives clearing organization, or

with a Collecting Futures Commission Merchant, may be withdrawn and

applied to such purposes, including the payment of commissions,

brokerage, interest, taxes, storage, and other charges, lawfully

accruing in connection with such Cleared Swaps.

(3) Deposits of Own Money, Securities, or Other Property.

(i) In order to ensure that it is always in compliance with

paragraph (f) of this section, a futures commission merchant may place

in an FCM Physical Location or deposit in a Cleared Swaps Customer

Account its own money, securities, or other property (provided, that

such securities or other property are unencumbered and are of the types

specified in Sec. 1.25 of this chapter).

(ii) Money, securities, or other property deposited by a futures

commission merchant pursuant to 22.13(b) and available to a derivatives

clearing organization or Collecting Futures Commission Merchant to meet

the obligations of the futures commission merchant's Cleared Swaps

Customers collectively, shall be maintained in an account separate from

the Cleared Swaps Customer Account.

(4) Residual Financial Interest. (i) If, in accordance with

paragraph (e)(3)(i) of this section, a futures commission merchant

places in an FCM Physical Location or deposits in a Cleared Swaps

Customer Account its own money, securities, or other property, then

such money, securities, or other property (including accruals thereon)

shall constitute Cleared Swaps Customer Collateral.

(ii) The futures commission merchant shall have a residual

financial interest in any portion of such money, securities, or other

property in excess of that necessary for compliance with paragraph

(f)(4) of this section.

(iii) The futures commission merchant may withdraw money,

securities, or other property from the FCM Physical

[[Page 6374]]

Location or Cleared Swaps Customer Account, to the extent of its

residual financial interest therein. At the time of such withdrawal,

the futures commission merchant shall ensure that the withdrawal does

not cause its residual financial interest to become less than zero.

(f) Requirements as to Amount. (1) For purposes of this Sec.

22.2(f), the term ``account'' shall reference the entries on the books

and records of a futures commission merchant pertaining to the Cleared

Swaps Customer Collateral of a particular Cleared Swaps Customer.

(2) The futures commission merchant must reflect in the account

that it maintains for each Cleared Swaps Customer the market value of

any Cleared Swaps Customer Collateral that it receives from such

customer, as adjusted by:

(i) Any uses permitted under Sec. 22.2(d) of this part;

(ii) Any accruals on permitted investments of such collateral under

Sec. 22.2(e) of this part that, pursuant to the futures commission

merchant's customer agreement with that customer, are creditable to

such customer;

(iii) Any charges lawfully accruing to the Cleared Swaps Customer,

including any commission, brokerage fee, interest, tax, or storage fee;

and

(iv) Any appropriately authorized distribution or transfer of such

collateral.

(3) If the market value of Cleared Swaps Customer Collateral in the

account of a Cleared Swaps Customer is positive after adjustments, then

that account has a credit balance. If the market value of Cleared Swaps

Customer Collateral in the account of a Cleared Swaps Customer is

negative after adjustments, then that account has a debit balance.

(4) The futures commission merchant must maintain in segregation,

in its FCM Physical Locations and/or its Cleared Swaps Customer

Accounts at Permitted Depositories, an amount equal to the sum of any

credit balances that the Cleared Swaps Customers of the futures

commission merchant have in their accounts, excluding from such sum any

debit balances that the Cleared Swaps Customers of the futures

commission merchant have in their accounts.

(5) Notwithstanding the foregoing, the futures commission merchant

must include, in calculating the sum referenced in paragraph (f)(4) of

this section, any debit balance that a Cleared Swaps Customer may have

in its account, to the extent that such balance is secured by ``readily

marketable securities'' that the Cleared Swaps Customer deposited with

the futures commission merchant.

(i) For purposes of this section, ``readily marketable'' shall be

defined as having a ``ready market'' as such latter term is defined in

Rule 15c3-1(c)(11) of the Securities and Exchange Commission (Sec.

241.15c3-1(c)(11) of this title).

(ii) In order for a debit balance to be deemed secured by ``readily

marketable securities,'' the futures commission merchant must maintain

a security interest in such securities, and must hold a written

authorization to liquidate the securities at the discretion of the

futures commission merchant.

(iii) To determine the amount secured by ``readily marketable

securities,'' the futures commission merchant shall:

(A) Determine the market value of such securities; and

(B) Reduce such market value by applicable percentage deductions

(i.e., ``securities haircuts'') as set forth in Rule 15c3-1(c)(2)(vi)

of the Securities and Exchange Commission (Sec. 240.15c3-1(c)(2)(vi)

of this title). The portion of the debit balance, not exceeding 100 per

cent, that is secured by the reduced market value of such readily

marketable securities shall be included in calculating the sum referred

to in paragraph (f)(4) of this section.

(g) Segregated Account; Daily Computation and Record. (1) Each

futures commission merchant must compute as of the close of each

business day, on a currency-by-currency basis:

(i) The aggregate market value of the Cleared Swaps Customer

Collateral in all FCM Physical Locations and all Cleared Swaps Customer

Accounts held at Permitted Depositories (the ``Collateral Value'');

(ii) The sum referenced in paragraph (f)(4) of this section (the

``Collateral Requirement''); and

(iii) The amount of the residual financial interest that the

futures commission merchant holds in such Cleared Swaps Customer

Collateral, which shall equal the difference between the Collateral

Value and the Collateral Requirement.

(2) The futures commission merchant must complete the daily

computations required by this section prior to noon on the next

business day and must keep such computations, together with all

supporting data, in accordance with the requirements of Sec. 1.31 of

this chapter.

Sec. 22.3 Derivatives Clearing Organizations: Treatment of Cleared

Swaps Customer Collateral.

(a) General. A derivatives clearing organization shall treat and

deal with the Cleared Swaps Customer Collateral deposited by a futures

commission merchant as belonging to the Cleared Swaps Customers of such

futures commission merchant and not other persons, including, without

limitation, the futures commission merchant.

(b) Location of Cleared Swaps Customer Collateral. (1) The

derivatives clearing organization must segregate all Cleared Swaps

Customer Collateral that it receives from futures commission merchants,

and must either hold such Cleared Swaps Customer Collateral itself as

set forth in paragraph (b)(2) of this section, or deposit such

collateral into one or more Cleared Swaps Customer Accounts held at a

Permitted Depository, as set forth in paragraph (b)(3) of this section.

(2) If a derivatives clearing organization holds Cleared Swaps

Customer Collateral itself, then the derivatives clearing organization

must:

(i) Physically separate such collateral from its own property, the

property of any futures commission merchant, and the property of any

other person that is not a Cleared Swaps Customer of a futures

commission merchant;

(ii) Clearly identify each physical location in which it holds such

collateral as ``Location of Cleared Swaps Customer Collateral'' (the

``DCO Physical Location'');

(iii) Ensure that the DCO Physical Location provides appropriate

protection for such collateral; and

(iv) Record in its books and records the amount of such Cleared

Swaps Customer Collateral separately from its own funds, the funds of

any futures commission merchant, and the funds of any other person that

is not a Cleared Swaps Customer of a futures commission merchant.

(3) If a derivatives clearing organization holds Cleared Swaps

Customer Collateral in a Permitted Depository, then:

(i) The Permitted Depository must qualify pursuant to the

requirements set forth in Sec. 22.4 of this part; and

(ii) The derivatives clearing organization must maintain a Cleared

Swaps Customer Account with each such Permitted Depository.

(c) Commingling. (1) A derivatives clearing organization may

commingle the Cleared Swaps Customer Collateral that it receives from

multiple futures commission merchants on behalf of their Cleared Swaps

Customers.

(2) A derivatives clearing organization shall not commingle the

Cleared Swaps Customer Collateral that it receives from a futures

commission merchant on behalf of Cleared Swaps Customers with any of

the following:

[[Page 6375]]

(i) The money, securities, or other property belonging to the

derivatives clearing organization;

(ii) The money, securities, or other property belonging to any

futures commission merchant; or

(iii) Other categories of funds that it receives from a futures

commission merchant on behalf of Customers, including customer funds

(as Sec. 1.3 of this chapter defines such term) and the foreign

futures or foreign options secured amount (as Sec. 1.3 of this chapter

defines such term), except as expressly permitted by Commission rule,

regulation or order, (or a derivatives clearing organization rule

approved in accordance with Sec. 39.15(b)(2) of this chapter).

(d) Exceptions; Permitted Investments. Notwithstanding the

foregoing and Sec. 22.15 of this part, a derivatives clearing

organization may invest the money, securities, or other property

constituting Cleared Swaps Customer Collateral in accordance with Sec.

1.25 of this chapter, which section shall apply to such money,

securities, or other property as if they comprised customer funds or

customer money subject to segregation pursuant to section 4d(a) of the

Act and the regulations thereunder.

Sec. 22.4 Futures Commission Merchants and Derivatives Clearing

Organizations: Permitted Depositories.

In order for a depository to be a Permitted Depository:

(a) The depository must (subject to Sec. 22.9) be one of the

following types of entities:

(1) A bank located in the United States;

(2) A trust company located in the United States;

(3) A Collecting Futures Commission Merchant registered with the

Commission (but only with respect to a Depositing Futures Commission

Merchant providing Cleared Swaps Customer Collateral); or

(4) A derivatives clearing organization registered with the

Commission; and

(b) The futures commission merchant or the derivatives clearing

organization must hold a written acknowledgment letter from the

depository as required by Sec. 22.5 of this part.

Sec. 22.5 Futures Commission Merchants and Derivatives Clearing

Organizations: Written Acknowledgement.

(a) Before depositing Cleared Swaps Customer Collateral, the

futures commission merchant or derivatives clearing organization shall

obtain and retain in its files a separate written acknowledgment letter

from each depository in accordance with Sec. Sec. 1.20 and 1.26 of

this chapter, with all references to ``customer funds'' modified to

apply to Cleared Swaps Customer Collateral, and with all references to

section 4d(a) or 4d(b) of the Act and the regulations thereunder

modified to apply to section 4d(f) of the Act and the regulations

thereunder.

(b) The futures commission merchant or derivatives clearing

organization shall adhere to all requirements specified in Sec. Sec.

1.20 and 1.26 of this chapter regarding retaining, permitting access

to, filing, or amending the written acknowledgment letter, in all cases

as if the Cleared Swaps Customer Collateral comprised customer funds

subject to segregation pursuant to section 4d(a) or 4d(b) of the Act

and the regulations thereunder.

(c) Notwithstanding paragraph (a) of this section, an

acknowledgement letter need not be obtained from a derivatives clearing

organization that has made effective, pursuant to section 5c(c) of the

Act and the regulations thereunder, rules that provide for the

segregation of Cleared Swaps Customer Collateral, in accordance with

all relevant provisions of the Act and the regulations thereunder.

Sec. 22.6 Futures Commission Merchants and Derivatives Clearing

Organizations: Naming of Cleared Swaps Customer Accounts.

The name of each Cleared Swaps Customer Account that a futures

commission merchant or a derivatives clearing organization maintains

with a Permitted Depository shall:

(a) Clearly identify the account as a ``Cleared Swaps Customer

Account'' and

(b) Clearly indicate that the collateral therein is ``Cleared Swaps

Customer Collateral'' subject to segregation in accordance with the Act

and this part.

Sec. 22.7 Permitted Depositories: Treatment of Cleared Swaps Customer

Collateral.

A Permitted Depository shall treat all funds in a Cleared Swaps

Customer Account as Cleared Swaps Customer Collateral. A Permitted

Depository shall not hold, dispose of, or use any such Cleared Swaps

Customer Collateral as belonging to any person other than:

(a) The Cleared Swaps Customers of the futures commission merchant

maintaining such Cleared Swaps Customer Account or;

(b) The Cleared Swaps Customers of the futures commission merchants

for which the derivatives clearing organization maintains such Cleared

Swaps Customer Account.

Sec. 22.8 Situs of Cleared Swaps Customer Accounts.

The situs of each of the following shall be located in the United

States:

(a) Each FCM Physical Location or DCO Physical Location;

(b) Each ``account,'' within the meaning of Sec. 22.2(f)(1), that

a futures commission merchant maintains for each Cleared Swaps

Customer; and

(c) Each Cleared Swaps Customer Account on the books and records of

a derivatives clearing organization with respect to the Cleared Swaps

Customers of a futures commission merchant.

Sec. 22.9 Denomination of Cleared Swaps Customer Collateral and

Location of Depositories.

(a) Subject to paragraph (b) of this section, futures commission

merchants and derivatives clearing organizations may hold Cleared Swaps

Customer Collateral in the denominations, at the locations and

depositories, and subject to the same segregation requirements

specified in Sec. 1.49 of this chapter, which section shall apply to

such Cleared Swaps Customer Collateral as if it comprised customer

funds subject to segregation pursuant to section 4d(a) of the Act.

(b) Notwithstanding the requirements set forth in Sec. 1.49 of

this chapter, a futures commission merchant's obligations to a Cleared

Swaps Customer may be denominated in a currency in which funds have

accrued to the customer as a result of a Cleared Swap carried through

such futures commission merchant, to the extent of such accruals.

(c) Each depository referenced in paragraph (a) of this section

shall be considered a Permitted Depository for purposes of this part.

Provided, however, that a futures commission merchant shall only be

considered a Permitted Depository to the extent that it is acting as a

Collecting Futures Commission Merchant (as Sec. 22.1 of this part

defines such term).

Sec. 22.10 Application of other Regulatory Provisions.

Sections 1.27, 1.28, 1.29, and 1.30 of this chapter shall apply to

the Cleared Swaps Customer Collateral held by futures commission

merchants and derivatives clearing organizations to the same extent as

if such sections referred to:

(a) ``Cleared Swaps Customer Collateral'' in place of ``customer

funds;''

(b) ``Cleared Swaps Customers'' instead of ``commodity or option

customers'' or ``customers or option customers;''

[[Page 6376]]

(c) ``Cleared Swaps Contracts'' instead of ``trades, contracts, or

commodity options;'' and

(d) ``Section 4d(f) of the Act'' instead of ``section 4d(a)(2) of

the Act.''

Sec. 22.11 Information To Be Provided Regarding Customers and Their

Cleared Swaps.

(a) Each Depositing Futures Commission Merchant shall:

(1) The first time that the Depositing Futures Commission Merchant

intermediates a Cleared Swap for a Cleared Swaps Customer with a

Collecting Futures Commission Merchant, provide information sufficient

to identify such customer to the relevant Collecting Futures Commission

Merchant; and

(2) At least once each business day thereafter, provide information

to the relevant Collecting Futures Commission Merchant sufficient to

identify, for each Cleared Swaps Customer, the portfolio of rights and

obligations arising from the Cleared Swaps that the Depositing Futures

Commission Merchant intermediates for such customer.

(b) If an entity serves as both a Depositing Futures Commission

Merchant and a Collecting Futures Commission Merchant, then:

(1) The information that such entity must provide to its Collecting

Futures Commission Merchant pursuant to paragraph (a)(1) of this

section shall also include information sufficient to identify each

Cleared Swaps Customer of the Depositing Futures Commission Merchant

for which such entity serves as a Collecting Futures Commission

Merchant; and

(2) The information that such entity must provide to its Collecting

Futures Commission Merchant pursuant to paragraph (a)(2) of this

section shall also include information sufficient to identify, for each

Cleared Swaps Customer referenced in paragraph (b)(1) of this section,

the portfolio of rights and obligations arising from the Cleared Swaps

that such entity intermediates as a Collecting Futures Commission

Merchant, on behalf of its Depositing Futures Commission Merchant, for

such customer.

(c) Each futures commission merchant that intermediates a Cleared

Swap for a Cleared Swaps Customer, on or subject to the rules of a

derivatives clearing organization, directly as a Clearing Member shall:

(1) The first time that such futures commission merchant

intermediates a Cleared Swap for a Cleared Swaps Customer, provide

information to the relevant derivatives clearing organization

sufficient to identify such customer; and

(2) At least once each business day thereafter, provide information

to the relevant derivatives clearing organization sufficient to

identify, for each Cleared Swaps Customer, the portfolio of rights and

obligations arising from the Cleared Swaps that such futures commission

merchant intermediates for such customer.

(d) If the futures commission merchant referenced in paragraph (c)

of this section is a Collecting Futures Commission Merchant, then:

(1) The information that it must provide to the derivatives

clearing organization pursuant to paragraph (c)(1) of this section

shall also include information sufficient to identify each Cleared

Swaps Customer of any entity that acts as a Depositing Futures

Commission Merchant in relation to the Collecting Futures Commission

Merchant (including, without limitation, each Cleared Swaps Customer of

any Depositing Futures Commission Merchant for which such entity also

serves as a Collecting Futures Commission Merchant); and

(2) The information that it must provide to the derivatives

clearing organization pursuant to paragraph (c)(2) of this section

shall also include information sufficient to identify, for each Cleared

Swaps Customer referenced in paragraph (d)(1) of this section, the

portfolio of rights and obligations arising from the Cleared Swaps that

the Collecting Futures Commission Merchant intermediates, on behalf of

the Depositing Futures Commission Merchant, for such customer.

(e) Each derivatives clearing organization shall:

(1) Take appropriate steps to confirm that the information it

receives pursuant to paragraphs (c)(1) or (c)(2) of this section is

accurate and complete, and

(2) Ensure that the futures commission merchant is providing the

derivatives clearing organization the information required by

paragraphs (c)(1) or (c)(2) of this section on a timely basis.

Sec. 22.12 Information To Be Maintained Regarding Cleared Swaps

Customer Collateral.

(a) Each Collecting Futures Commission Merchant receiving Cleared

Swaps Customer Funds from an entity serving as a Depositing Futures

Commission Merchant shall, no less frequently than once each business

day, calculate and record:

(1) the amount of collateral required at such Collecting Futures

Commission Merchant for each Cleared Swaps Customer of the entity

acting as Depositing Futures Commission Merchant (including, without

limitation, each Cleared Swaps Customer of any Depositing Futures

Commission Merchant for which such entity also serves as a Collecting

Futures Commission Merchant); and

(2) the sum of the individual collateral amounts referenced in

paragraph (a)(1) of this section.

(b) Each Collecting Futures Commission Merchant shall calculate the

collateral amounts referenced in paragraph (a) of this section with

respect to the portfolio of rights and obligations arising from the

Cleared Swaps that the Collecting Futures Commission Merchant

intermediates, on behalf of the Depositing Futures Commission Merchant,

for each Cleared Swaps Customer referenced in paragraph (a)(1) of this

section.

(c) Each derivatives clearing organization receiving Cleared Swaps

Customer Funds from a futures commission merchant shall, no less

frequently than once each business day, calculate and record:

(1) the amount of collateral required at such derivatives clearing

organization for each Cleared Swaps Customer of the futures commission

merchant; and

(2) the sum of the individual collateral amounts referenced in

paragraph (c)(1) of this section.

(d) If the futures commission merchant referenced in paragraph (c)

of this section is a Collecting Futures Commission Merchant, then the

derivatives clearing organization shall also perform and record the

results of the calculation required in paragraph (c) of this section

for each Cleared Swaps Customer of an entity acting as a Depositing

Futures Commission Merchant in relation to the Collecting Futures

Commission Merchant (including, without limitation, any Cleared Swaps

Customer for which such entity is also acting as a Collecting Futures

Commission Merchant).

(e) Each futures commission merchant shall calculate the collateral

amounts referenced in paragraph (c) of this section with respect to the

portfolio of rights and obligations arising from the Cleared Swaps that

the futures commission merchant intermediates (including, without

limitation, as a Collecting Futures Commission Merchant on behalf of a

Depositing Futures Commission Merchant), for each Cleared Swaps

Customer referenced in paragraphs (c)(1) and (d) of this section.

(f) The collateral requirement referenced in paragraph (a) of this

[[Page 6377]]

section with respect to a Collecting Futures Commission Merchant shall

be no less than that imposed by the relevant derivatives clearing

organization with respect to the same portfolio of rights and

obligations for each relevant Cleared Swaps Customer.

Sec. 22.13 Additions to Cleared Swaps Customer Collateral.

(a)(1) At the election of the derivatives clearing organization or

Collecting Futures Commission Merchant, the collateral requirement

referred to in Sec. Sec. 22.12(a), (c), and (d) of this part

applicable to a particular Cleared Swaps Customer or group of Cleared

Swaps Customers may be increased based on an evaluation of the credit

risk posed by such customer or group, in which case the derivatives

clearing organization or Collecting Futures Commission Merchant shall

collect and record such higher amount as provided in Sec. 22.12 of

this part.

(2) Nothing in paragraph (a)(1) of this section is intended to

interfere with the right of a futures commission merchant to increase

the collateral requirements at such futures commission merchant with

respect to any of its Cleared Swaps Customers or Customers.

(b) Any collateral deposited by a futures commission merchant

(including a Depositing Futures Commission Merchant) pursuant to Sec.

22.2(e)(3)(ii) of this part, which collateral is identified as such

futures commission merchant's own property may be used by the

derivatives clearing organization or Collecting Futures Commission

Merchant, as applicable, to margin, guarantee or secure the Cleared

Swaps of any or all of such Cleared Swaps Customers.

(c) A futures commission merchant may transmit to a derivatives

clearing organization any collateral posted by a Cleared Swaps Customer

in excess of the amount required by the derivatives clearing

organization if:

(1) the rules of the derivatives clearing organization expressly

permit the futures commission merchant to transmit collateral in excess

of the amount required by the derivatives clearing organization; and

(2) the derivatives clearing organization provides a mechanism by

which the futures commission merchant is able to, and maintains rules

pursuant to which the futures commission merchant is required to,

identify each Business Day, for each Cleared Swaps Customer, the amount

of collateral posted in excess of the amount required by the

derivatives clearing organization.

Sec. 22.14 Futures Commission Merchant Failure To Meet a Customer

Margin Call in Full.

(a) A Depositing Futures Commission Merchant which receives a call

for either initial margin or variation margin with respect to a Cleared

Swaps Customer Account from a Collecting Futures Commission Merchant,

which call such Depositing Futures Commission Merchant does not meet in

full, shall, with respect to each Cleared Swaps Customer of such

Depositing Futures Commission Merchant whose Cleared Swaps contribute

to such margin call,

(1) Transmit to the Collecting Futures Commission Merchant an

amount equal to the lesser of

(i) The amount called for; or

(ii) The remaining Cleared Swaps Collateral on deposit at such

Depositing Futures Commission Merchant for that Cleared Swaps Customer;

and

(2) Advise the Collecting Futures Commission Merchant of the

identity of each such Cleared Swaps Customer, and the amount

transmitted on behalf of each such customer.

(b) If the entity acting as Depositing Futures Commission Merchant

referenced in paragraph (a) of this section is also a Collecting

Futures Commission Merchant, then:

(1) Such entity shall include in the transmission required in

paragraph (a)(1) of this section any amount that it receives, pursuant

to paragraph (a)(1) of this section, from a Depositing Futures

Commission Merchant for which such entity acts as a Collecting Futures

Commission Merchant; and

(2) Such entity shall present its Collecting Futures Commission

Merchant with the information that it receives, pursuant to paragraph

(a)(2) of this section, from a Depositing Futures Commission Merchant

for which such entity acts as a Collecting Futures Commission Merchant.

(c) A futures commission merchant which receives a call for either

initial or variation margin with respect to a Cleared Swaps Customer

Account from a derivatives clearing organization, which call such

futures commission merchant does not meet in full, shall, with respect

to each Cleared Swaps Customer of such futures commission merchant

whose Cleared Swaps contribute to such margin call:

(1) Transmit to the derivatives clearing organization an amount

equal to the lesser of

(i) The amount called for; or

(ii) The remaining Cleared Swaps Collateral on deposit at such

futures commission merchant for each such Cleared Swaps Customer; and

(2) Advise the derivatives clearing organization of the identity of

each such Cleared Swaps Customer, and the amount transmitted on behalf

of each such customer.

(d) If the futures commission merchant referenced in paragraph (c)

is a Collecting Futures Commission Merchant, then:

(1) Such Collecting Futures Commission Merchant shall include in

the transmission required in paragraph (c)(1) of this section any

amount that it receives from a Depositing Futures Commission Merchant

pursuant to paragraph (a)(1) of this section; and

(2) Such Collecting Futures Commission shall present the

derivatives clearing organization with the information that it receives

from a Depositing Futures Commission Merchant pursuant to paragraph

(a)(2) of this section.

(e) If,

(1) On the business day prior to the business day on which the

Depositing Futures Commission Merchant fails to meet a margin call with

respect to a Cleared Swaps Customer Account, such Collecting Futures

Commission Merchant referenced in paragraph (a) of this section held,

with respect to such account, Cleared Swaps Collateral of a value no

less than the amount specified in Sec. 22.12(a)(2) of this part, after

the application of haircuts specified by policies applied by such

Collecting Futures Commission Merchant in its relationship with the

Depositing Futures Commission Merchant, and

(2) As of the close of business on the business day on which the

margin call is not met, the market value of the Cleared Swaps

Collateral held by the derivatives clearing organization or Collecting

Futures Commission Merchant is, due to changes in such market value,

less than the amount specified in Sec. 22.12(a)(2) of this part, then

the amount of such collateral attributable to each Cleared Swaps

Customer pursuant to Sec. 22.12(a)(1) of this part shall be reduced by

the percentage difference between the amount specified in Sec.

22.12(a)(2) of this part and such market value.

(f) If:

(1) On the business day prior to the business day on which the

futures commission merchant fails to meet a margin call with respect to

a Cleared Swaps Customer Account, the derivatives clearing organization

referenced in paragraph (c) of this section held, with respect to such

account, Cleared Swaps Collateral of a value no less than the amount

specified in Sec. 22.12(c)(2) of this part, after the application of

haircuts specified by the

[[Page 6378]]

rules and procedures of such derivatives clearing organization, and

(2) As of the close of business on the business day on which the

margin call is not met, the market value of the Cleared Swaps

Collateral held by the derivatives clearing organization is, due to

changes in such market value, less than the amount specified in Sec.

22.12(c)(2) of this part, then the amount of collateral attributable to

each Cleared Swaps Customer pursuant to Sec. 22.12(c)(1) of this part

shall be reduced by the percentage difference between the amount

specified in Sec. 22.12(c)(2) and such market value.

(g) A derivatives clearing organization or Collecting Futures

Commission Merchant is entitled to reasonably rely upon any information

provided by a defaulting futures commission merchant under Sec. 22.14.

If the defaulting futures commission merchant does not provide such

information on the date of the futures commission merchant's default, a

derivatives clearing organization or Collecting Futures Commission

Merchant may rely on the information previously provided to it by the

defaulting futures commission merchant.

Sec. 22.15 Treatment of Cleared Swaps Customer Collateral on an

Individual Basis.

Subject to Sec. 22.3(d) of this part, each derivatives clearing

organization and each Collecting Futures Commission Merchant receiving

Cleared Swaps Customer Collateral from a futures commission merchant

shall treat the value of collateral required with respect to the

portfolio of rights and obligations arising out of the Cleared Swaps

intermediated for each Cleared Swaps Customer, and collected from the

futures commission merchant, as belonging to such customer, and such

amount shall not be used to margin, guarantee, or secure the Cleared

Swaps or other obligations of the futures commission merchant or of any

other Cleared Swaps Customer or Customer. Nothing contained herein

shall be construed to limit, in any way, the right of a derivatives

clearing organization or Collecting Futures Commission Merchant to

liquidate any or all positions in a Cleared Swaps Customer Account in

the event of default of a clearing member or Depositing Futures

Commission Merchant.

Sec. 22.16 Disclosures to Customers.

(a) A futures commission merchant shall disclose, to each of its

Cleared Swaps Customers, the governing provisions, as described in

paragraph (c) of this section, relating to use of Cleared Swaps

Customer Collateral, transfer, neutralization of the risks, or

liquidation of Cleared Swaps in the event of a default by the futures

commission merchant relating to the Cleared Swaps Customer Account, as

well as any change in such governing provisions.

(b) If the futures commission merchant referenced in paragraph (a)

of this section is a Depositing Futures Commission Merchant, then such

futures commission merchant shall disclose, to each of its Cleared

Swaps Customers, the governing provisions, as described in paragraph

(c) of this section, relating to use of Cleared Swaps Customer

Collateral, transfer, neutralization of the risks, or liquidation of

Cleared Swaps in the event of a default by:

(1) Such futures commission merchant or

(2) Any relevant Collecting Futures Commission Merchant relating to

the Cleared Swaps Customer Account, as well as any change in such

governing provisions.

(c) The governing provisions referred to in paragraphs (a) and (b)

of this section are the rules of each derivatives clearing

organization, or the provisions of the customer agreement between the

Collecting Futures Commission Merchant and the Depositing Futures

Commission Merchant, on or through which the Depositing Futures

Commission Merchant will intermediate Cleared Swaps for such Cleared

Swaps Customer.

PART 190--BANKRUPTCY

0

2. The authority citation for part 190 continues to read as follows:

Authority: 7 U.S.C. 1a, 2, 4a, 6c, 6d, 6g, 7a, 12, 19, and 24,

and 11 U.S.C. 362, 546, 548, 556, and 761-766, unless otherwise

noted.

Sec. Sec. 190.01, 190.02, 190.03, 190.05, 190.06, 190.07,

190.10 [Amended]

0

3. In 17 CFR part 190:

0

a. Remove the words ``commodity account'' and add, in their place, the

words ``commodity contract account'' in:

0

i. Sections 190.01(w), (y), and (kk)(6);

0

ii. Sections 190.02(d)(1), (6), and (7);

0

iii. Section 190.06(g)(3); and

0

iv. Section 190.10(d)(1).

0

b. Remove the words ``commodity futures account'' and add, in their

place, the words ``commodity contract account'' in:

0

i. Section 190.03(a)(2); and

0

ii. Section 190.10(h).

0

c. Remove the words ``commodity transactions'' and add, in their place,

the words ``commodity contract transactions'' in Sec. 190.02(d)(3).

0

d. Remove the words ``commodity futures contract'' and add, in their

place, the words ``commodity contract'' in Sec. 190.05(a)(1) and

(b)(1).

0

e. Remove the words ``commodity accounts'' and add, in their place, the

words ``commodity contract accounts'' in Sec. 190.06(g)(1)(i) and

(ii).

0

f. Remove the words ``board of trade'' and add, in their place, the

words ``designated contract market'' in Sec. 190.07(e)(1).

0

g. Remove the words ``contract market'' and add, in their place, the

words ``designated contract market'' in Sec. 190.07(e)(2)(ii)(B).

0

4. In Sec. 190.01,

0

a. Redesignate paragraphs (e) through (oo) as (f) through (pp);

0

b. Add a new paragraph (e); and

0

c. Revise paragraphs (a), and newly redesignated paragraphs (f), (cc),

(hh), (ll)(2)(ii), (ll)(4), (ll)(5), and (pp) to read as follows:

Sec. 190.01 Definitions.

* * * * *

(a)(1) Account class means each of the following types of customer

accounts which must be recognized as a separate class of account by the

trustee: futures accounts, foreign futures accounts, leverage accounts,

delivery accounts as defined in Sec. 190.05(a)(2) of this part, and

cleared swaps accounts.

(2)(i) To the extent that the equity balance, as defined in Sec.

190.07 of this part, of a customer in a commodity option, as defined in

Sec. 1.3 of this chapter, may be commingled with the equity balance of

such customer in any domestic commodity futures contract pursuant to

regulations under the Act, the aggregate shall be treated for purposes

of this part as being held in a futures account.

(ii) To the extent that such equity balance of a customer in a

commodity option may be commingled with the equity balance of such

customer in any cleared swaps account pursuant to regulations under

this act, the aggregate shall be treated for purposes of this part as

being held in a cleared swaps account.

(iii) If positions or transactions in commodity contracts that

would otherwise belong to one account class (and the money, securities,

or other property margining, guaranteeing, or securing such positions

or transactions), are, pursuant to a Commission rule, regulation, or

order (or a derivatives clearing organization rule approved in

accordance with Sec. 39.15(b)(2) of this chapter), held separately

from other positions and transactions in that account class, and are

commingled with positions or transactions in commodity

[[Page 6379]]

contracts of another account class (and the money, securities, or other

property margining, guaranteeing, or securing such positions or

transactions), then the former positions (and the relevant money,

securities, or other property) shall be treated, for purposes of this

part, as being held in an account of the latter account class.

* * * * *

(e) Calendar day. A calendar day includes the time from midnight to

midnight.

(f) Clearing organization shall have the same meaning as that set

forth in section 761(2) of the Bankruptcy Code.

* * * * *

(cc) Non-public customer means any person enumerated in the

definition of Proprietary Account in Sec. 1.3 or Sec. 31.4(e) of this

chapter, any person excluded from the definition of ``foreign futures

or foreign options customer'' in the proviso to section 30.1(c) of this

chapter, or any person enumerated in the definition of Cleared Swaps

Proprietary Account in Sec. 22.1 of this chapter, in each case, if

such person is defined as a ``customer'' under paragraph (k) of this

section.

* * * * *

(hh) Principal contract means a contract which is not traded on a

designated contract market, and includes leverage contracts and dealer

options, but does not include:

(1) Transactions executed off the floor of a designated contract

market pursuant to rules approved by the Commission or rules which the

designated contract market is required to enforce, or pursuant to rules

of a foreign board of trade located outside the United States, its

territories or possessions; or

(2) Cleared swaps contracts.

* * * * *

(ll) * * *

(2) * * *

(ii) Is a bona fide hedging position or transaction as defined in

Sec. 1.3 of this chapter or is a commodity option transaction which

has been determined by the registered entity to be economically

appropriate to the reduction of risks in the conduct and management of

a commercial enterprise pursuant to rules which have been approved by

the Commission pursuant to section 5c(c) of the Commodity Exchange Act;

and

* * * * *

(4) Any cash or other property deposited prior to the entry of the

order for relief to pay for the taking of physical delivery on a long

commodity contract or for payment of the strike price upon exercise of

a short put or a long call option contract on a physical commodity,

which cannot be settled in cash, in excess of the amount necessary to

margin such commodity contract prior to the notice date or exercise

date, which cash or other property is identified on the books and

records of the debtor as received from or for the account of a

particular customer on or after three calendar days before the first

notice date or three calendar days before the exercise date

specifically for the purpose of payment of the notice price upon taking

delivery or the strike price upon exercise, respectively, and such

customer takes delivery or exercises the option in accordance with the

applicable designated contract market rules.

(5) The cash price tendered for any property deposited prior to the

entry of the order for relief to make physical delivery on a short

commodity contract or for exercise of a long put or a short call option

contract on a physical commodity, which cannot be settled in cash, to

the extent it exceeds the amount necessary to margin such contract

prior to the notice date or exercise date, which property is identified

on the books and records of the debtor as received from or for the

account of a particular customer on or after three calendar days before

the first notice date or three calendar days before the exercise date

specifically for the purpose of a delivery or exercise, respectively,

and such customer makes delivery or exercises the option in accordance

with the applicable contract market rules.

* * * * *

(pp) Cleared Swap. This term shall have the same meaning as set

forth in Sec. 22.1 of this chapter.

0

5. In Sec. 190.02, revise paragraphs (a), (b)(1), (b)(2), (d)(11),

(e), (f)(1)(i), (f)(1(ii) and (g)(2)(i) to read as follows:

Sec. 190.02 Operation of the debtor's estate subsequent to the filing

date and prior to the primary liquidation date.

* * * * *

(a) Notices to the Commission and Designated Self-Regulatory

Organizations.

(1) General. Each commodity broker which files a petition in

bankruptcy shall, at or before the time of such filing, and each

commodity broker against which such a petition is filed shall, as soon

as possible, but no later than one calendar day after the receipt of

notice of such filing, notify the Commission and such broker's

designated self-regulatory organization, if any, in accordance with

Sec. 190.10(a) of the filing date, the court in which the proceeding

has been filed, and the docket number assigned to that proceeding by

the court.

(2) Of transfers under section 764(b) of the Bankruptcy Code. As

soon as possible, but in no event later than the close of business on

third calendar day after the order for relief, the trustee, the

applicable self-regulatory organization, or the commodity broker must

notify the Commission in accordance with Sec. 190.10(a) whether such

entity or organization intends to transfer or to apply to transfer open

commodity contracts on behalf of the commodity broker in accordance

with section 764(b) of the Bankruptcy Code and Sec. 190.06 (e) or (f).

(b) Notices to customers. (1) Specifically identifiable property

other than commodity contracts. The trustee must use its best efforts

to promptly, but in no event later than two calendar days after entry

of the order for relief, commence to publish in a daily newspaper or

newspapers of general circulation approved by the court serving the

location of each branch office of the commodity broker, for two

consecutive days a notice to customers stating that all specifically

identifiable property of customers other than open commodity contracts

which has not otherwise been liquidated will be liquidated commencing

on the sixth calendar day after the second publication date if the

customer has not instructed the trustee in writing on or before the

fifth calendar day after the second publication date to return such

property pursuant to the terms for distribution of specifically

identifiable property contained in Sec. 190.08(d)(1) and, on the

seventh calendar day after such second publication date, if such

property has not been returned in accordance with such terms on or

prior to that date. Such notice must describe specifically identifiable

property in accordance with the definition in this part and must

specify the terms upon which that property may be returned. Publication

of the form of notice set forth in the appendix to this part will

constitute sufficient notice for purposes of this paragraph (b)(1).

(2) Request for instructions regarding transfer of open commodity

contracts. The trustee must use its best efforts to request promptly,

but in no event later than two calendar days after entry of an order

for relief, customer instructions concerning the transfer or

liquidation of the specifically identifiable open commodity contracts,

if any, not required to be liquidated under paragraph (f)(1) of this

section. The request for customer instructions required by this

paragraph (b)(2) must state that the trustee is required to liquidate

any such commodity contract for which transfer instructions have not

[[Page 6380]]

been received on or before the seventh calendar day after entry of the

order for relief, at an hour specified by the trustee, and any such

commodity contract for which instructions have been received which has

not been transferred in accordance with Sec. 190.08(d)(2) on or before

the seventh calendar day after entry of the order for relief. A form of

notice is set forth in the appendix to this part.

* * * * *

(d) * * *

(11) Whether the claimant's positions in security futures products

are held in a futures account or a securities account, as these terms

are defined in Sec. 1.3 of this chapter;

* * * * *

(e) Transfers--(1) All cases. The trustee for a commodity broker

must immediately use its best efforts to effect a transfer in

accordance with Sec. 190.06 (e) and (f) no later than the seventh

calendar day after the order for relief of the open commodity contracts

and equity held by the commodity broker for or on behalf of its

customers.

(2) Involuntary cases. A commodity broker against which an

involuntary petition in bankruptcy is filed, or the trustee if a

trustee has been appointed in such case, must use its best efforts to

effect a transfer in accordance with Sec. 190.06 (e) and (f) of all

open commodity contracts and equity held by the commodity broker for or

on behalf of its customers and such other property as the Commission in

its discretion may authorize, on or before the seventh calendar day

after the filing date, and immediately cease doing business: Provided,

however, That the commodity broker may trade for liquidation only,

unless otherwise directed by the Commission, by any applicable self-

regulatory organization or by the court: And, Provided further, That if

the commodity broker demonstrates to the Commission within such period

that it was in compliance with the segregation and financial

requirements of this chapter on the filing date, and the Commission

determines, in its sole discretion, that such transfer or liquidation

is neither appropriate nor in the public interest, the commodity broker

may continue in business subject to applicable provisions of the

Bankruptcy Code and of this chapter.

(f) * * *

(1) * * *

(i) Dealer option contracts, if the dealer option grantor is not

the debtor, which cannot be transferred on or before the seventh

calendar day after the order for relief; and

(ii) Specifically identifiable commodity contracts as defined in

Sec. 190.01(kk)(2) for which an instruction prohibiting liquidation is

noted prominently in the accounting records of the debtor and timely

received under paragraph (b)(2) of this section. Notwithstanding the

foregoing, an open commodity contract must be offset if: such contract

is a futures contract or a Cleared Swaps contract which cannot be

settled in cash and which would otherwise remain open either beyond the

last day of trading (if applicable), or the first day on which notice

of intent to deliver may be tendered with respect thereto, whichever

occurs first; such contract is a long option on a physical commodity

which cannot be settled in cash and would be automatically exercised,

has value and would remain open beyond the last day for exercise; such

contract is a short option on a physical commodity which cannot be

settled in cash; or, as otherwise specified in these rules.

* * * * *

(g) * * *

(2) * * *

(i) 100% of the maintenance margin requirements of the applicable

designated contact market or swap execution facility, if any, with

respect to the open commodity contracts in such account; or

* * * * *

0

6. In Sec. 190.03, revise paragraphs (a)(3), (b)(3), (b)(4), (b)(5),

and (c) to read as follows:

Sec. 190.03 Operation of the debtor's estate subsequent to the

primary liquidation date.

* * * * *

(a) * * *

(3) Margin calls. The trustee must promptly issue margin calls with

respect to any account referred to under paragraph (a)(1) of this

section in which the balance does not equal or exceed 100% of the

maintenance margin requirements of the applicable designated contact

market or swap execution facility, if any, with respect to the open

commodity contracts in such account, or if there are no such

maintenance margin requirements, 100% of the clearing organization's

initial margin requirements applicable to the open commodity contracts

in such account, or if there are no such maintenance margin

requirements or clearing organization initial margin requirements, then

50% of the customer initial margin applicable to the commodity

contracts in such account: Provided, That no margin calls need be made

to restore customer initial margin.

* * * * *

(b) * * *

(3) The trustee has received no customer instructions with respect

to such contract by the sixth calendar day after entry of the order for

relief;

(4) The commodity contract has not been transferred in accordance

with Sec. 190.08(d)(2) on or before the seventh calendar day after

entry of the order for relief; or

(5) The commodity contract would otherwise remain open (e.g.,

because it cannot be settled in cash) beyond the last day of trading in

such contract (if applicable) or the first day on which notice of

delivery may be tendered with respect to such contract, whichever

occurs first.

(c) Liquidation of specifically identifiable property other than

open commodity contracts. All specifically identifiable property other

than open commodity contracts which have not been liquidated prior to

the primary liquidation date, and for which no customer instructions

have been timely received must be liquidated, to the extent reasonably

possible, no later than the sixth calendar day after final publication

of the notice referred to in Sec. 190.02(b)(1). All other specifically

identifiable property must be liquidated or returned, to the extent

reasonably possible, no later than the seventh calendar day after final

publication of such notice.

0

7. In Sec. 190.04, revise paragraph (d)(1) to read as follows:

Sec. 190.04 Operation of the debtor's estate--general.

* * * * *

(d) Liquidation -- (1) Order of Liquidation. (i) In the Market.

Liquidation of open commodity contracts held for a house account or

customer account by or on behalf of a commodity broker which is a

debtor shall be accomplished pursuant to the rules of a clearing

organization, a designated contract market, or a swap execution

facility, as applicable. Such rules shall ensure that the process for

liquidating open commodity contracts, whether for the house account or

the customer account, results in competitive pricing, to the extent

feasible under market conditions at the time of liquidation. Such rules

must be submitted to the Commission for approval, pursuant to section

5c(c) of the Act, and be approved by the Commission. Alternatively,

such rules must otherwise be submitted to and approved by the

Commission (or its delegate pursuant to Sec. 190.10(d) of this part)

prior to their application.

(ii) Book entry. Notwithstanding paragraph (d)(1) of this section,

in appropriate cases, upon application by

[[Page 6381]]

the trustee or the affected clearing organization, the Commission may

permit open commodity contracts to be liquidated, or settlement on such

contracts to be made, by book entry. Such book entry shall offset open

commodity contracts, whether matched or not matched on the books of the

commodity broker, using the settlement price for such commodity

contracts as determined by the clearing organization. Such settlement

price shall be determined by the rules of the clearing organization,

which shall ensure that such settlement price is established in a

competitive manner, to the extent feasible under market conditions at

the time of liquidation. Such rules must be submitted to the Commission

for approval pursuant to section 5c(c) of the Act, and be approved by

the Commission. Alternatively, such rules must otherwise be approved by

the Commission (or its delegate pursuant to Sec. 190.10(d) of this

part) prior to their application.

* * * * *

0

8. In Sec. 190.05, revise paragraph (b) introductory text to read as

follows:

Sec. 190.05 Making and taking delivery on commodity contracts.

* * * * *

(b) Rules for deliveries on behalf of a customer of a debtor.

Except in the case of a commodity contract which is settled in cash,

each designated contract market, swap execution facility, or clearing

organization shall adopt, maintain in effect and enforce rules which

have been submitted in accordance with section 5c(c) of the Act for

approval by the Commission, which:

* * * * *

0

9. In Sec. 190.06,

0

a. Remove paragraph (e)(1)(iv) and redesignate paragraph (e)(1)(v) as

(e)(1)(iv);

0

b. Revise paragraphs (a), (e)(1)(iii), (e)(2), (f)(3)(i), (g)(2) and

0

c. Add paragraph (g)(1)(iii) to read as follows:

Sec. 190.06 Transfers.

(a) Transfer rules. No clearing organization or other self-

regulatory organization may adopt, maintain in effect or enforce rules

which:

(1) Are inconsistent with the provisions of this part;

(2) Interfere with the acceptance by its members of open commodity

contracts and the equity margining or securing such contracts from

futures commission merchants, or persons which are required to be

registered as futures com-mission merchants, which are required to

transfer accounts pursuant to Sec. 1.17(a)(4) of this chapter; or

(3) Prevent the acceptance by its members of transfers of open

commodity contracts and the equity margining or securing such contracts

from futures commission merchants with respect to which a petition in

bankruptcy has been filed, if such transfers have been approved by the

Commission. Provided, however, that this paragraph shall not limit the

exercise of any contractual right of a clearing organization or other

registered entity to liquidate open commodity contracts.

* * * * *

(e) * * *

(1) * * *

(iii) Dealer option accounts, if the debtor is the dealer option

grantor with respect to such accounts; or

* * * * *

(2) Amount of equity which may be transferred. In no case may

money, securities or property be transferred in respect of any eligible

account if the value of such money, securities or property would exceed

the funded balance of such account based on available information as of

the calendar day immediately preceding transfer less the value on the

date of return or transfer of any property previously returned or

transferred with respect thereto.

(f) * * *

(3) * * *

(i) Of the customer estate. If all eligible customer accounts held

by a debtor cannot be transferred under this section, a partial

transfer may nonetheless be made. The Commission will not disapprove

such a transfer for the sole reason that it was a partial transfer if

it would prefer the transfer of accounts, the liquidation of which

could adversely affect the market or the bankrupt estate. Any dealer

option contract held by or for the account of a debtor which is a

futures commission merchant from or for the account of a customer which

has not previously been transferred, and is eligible for transfer, must

be transferred on or before the seventh calendar day after entry of the

order for relief.

* * * * *

(g) * * *

(1) * * *

(iii) The transfer prior to the order for relief by a clearing

organization of one or more accounts held for or on behalf of customers

of the debtor, provided that (I) the money, securities, or other

property accompanying such transfer did not exceed the funded balance

of each account based on available information as of the close of

business on the business day immediately preceding such transfer less

the value on the date of return or transfer of any property previously

returned or transferred thereto, and (II) the transfer is not

disapproved by the Commission.

(2) Post-relief transfers. On or after the entry of the order for

relief, the following transfers to one or more transferees may not be

avoided by the trustee:

(i) The transfer of a customer account eligible to be transferred

under paragraph (e) or (f) of this section made by the trustee of the

commodity broker or by any self-regulatory organization of the

commodity broker:

(A) On or before the seventh calendar day after the entry of the

order for relief; and

(B) The Commission is notified in accordance with Sec.

190.02(a)(2) prior to the transfer and does not disapprove the

transfer; or

(ii) The transfer of a customer account at the direction of the

Commission on or before the seventh calendar day after the order for

relief upon such terms and conditions as the Commission may deem

appropriate and in the public interest.

* * * * *

0

10. In Sec. 190.07,

0

a. Redesignate paragraph (b)(2)(xiii) as paragraph (b)(2)(xiv);

0

b. Add a new paragraph (b)(2)(xiii); and

0

c. Revise paragraphs (b)(2)(viii), (b)(2)(ix), (b)(3)(v), (c)(1)(i),

(e) introductory text, (e)(1) and (e)(4) to read as follows:

Sec. 190.07 Calculation of allowed net equity.

* * * * *

(b) * * *

(2) * * *

(viii) Subject to paragraph (b)(2)(ix) of this section, the futures

accounts, leverage accounts, options accounts, foreign futures

accounts, delivery accounts (as defined in Sec. 190.05(a)(2)), and

cleared swaps accounts of the same person shall not be deemed to be

held in separate capacities: Provided, however, that such accounts may

be aggregated only in accordance with paragraph (b)(3) of this section.

(ix) An omnibus customer account of a futures commission merchant

maintained with a debtor shall be deemed to be held in a separate

capacity from the house account and any other omnibus customer account

of such futures commission merchant.

* * * * *

(xiii) With respect to the cleared swaps account class, each

individual customer account within each omnibus customer account

referred to in

[[Page 6382]]

paragraph (ix) of this section shall be deemed to be held in a separate

capacity from each other such individual customer account; subject to

the provisions of paragraphs (b)(2)(i) through (xii) of this paragraph

(b)(2).

* * * * *

(3) * * *

(v) The rules pertaining to separate capacities and permitted

setoffs contained in this section must be applied subsequent to the

entry of an order for relief; prior to the filing date, the provisions

of Sec. 1.22 of this chapter and of sections 4d(a)(2) and 4d(f) of the

Act (and, in each case, the regulations promulgated thereunder) shall

govern what setoffs are permitted.

* * * * *

(c) * * *

(1) * * *

(i) Multiplying the ratio of the amount of the net equity claim

less the amounts referred to in paragraph (c)(1)(ii) of this section of

such customer for any account class bears to the sum of the net equity

claims less the amounts referred to in paragraph (c)(1)(ii) of this

section of all customers for accounts of that class by the sum of:

(A) The value of the money, securities or property segregated on

behalf of all accounts of the same class less the amounts referred to

in paragraph (c)(1)(ii) of this section;

(B) The value of any money, securities or property which must be

allocated under Sec. 190.08 to customer accounts of the same class;

and

(C) The amount of any add-back required under paragraph (b)(4) of

this section; and

* * * * *

(e) Valuation. In computing net equity, commodity contracts and

other property held by or for a commodity broker must be valued as

provided in this paragraph (e): Provided, however, that for all

commodity contracts other than those listed in paragraph (e)(1) of this

section, if identical commodity contracts, securities, or other

property are liquidated on the same date, but cannot be liquidated at

the same price, the trustee may use the weighted average of the

liquidation prices in computing the net equity of each customer holding

such contracts, securities, or property.

(1) Commodity Contracts. Unless otherwise specified in this

paragraph (e), the value of an open commodity contract shall be equal

to the settlement price as calculated by the clearing organization

pursuant to its rules: Provided, that such rules must either be

submitted to the Commission, pursuant to section 5c(c)(4) of the Act

and be approved by the Commission, or such rules must be otherwise

approved by the Commission (or its delegate pursuant to Sec. 190.10(d)

of this part) prior to their application; Provided, further, that if

such contract is transferred its value shall be determined as of the

end of the settlement cycle in which it is transferred; and Provided,

finally, that if such contract is liquidated, its value shall be equal

to the net proceeds of liquidation.

* * * * *

(4) Securities. The value of a listed security shall be equal to

the closing price for such security on the exchange upon which it is

traded. The value of all securities not traded on an exchange shall be

equal in the case of a long position, to the average of the bid prices

for long positions, and in the case of a short position, to the average

of the asking prices for the short positions. If liquidated prior to

the primary liquidation date, the value of such security shall be equal

to the net proceeds of its liquidation. Securities which are not

publicly traded shall be valued by the trustee, subject to approval of

the court, using such professional assistance as the trustee deems

necessary in its sole discretion under the circumstances.

* * * * *

0

11. In Sec. 190.09, revise paragraph (b) to read as follows:

Sec. 190.09 Member property.

* * * * *

(b) Scope of Member Property. Member property shall include all

money, securities and property received, acquired, or held by a

clearing organization to margin, guarantee or secure, on behalf of a

clearing member, the proprietary account, as defined in Sec. 1.3 of

this chapter, any account not belonging to a foreign futures or foreign

options customer pursuant to the proviso in Sec. 30.1(c), and any

Cleared Swaps Proprietary Account, as defined in Sec. 22.1: Provided,

however, that any guaranty deposit or similar payment or deposit made

by such member and any capital stock, or membership of such member in

the clearing organization shall also be included in member property

after payment in full of that portion of the net equity claim of the

member based on its customer account and of any obligations due to the

clearing organization which may be paid therefrom in accordance with

the by-laws or rules of the clearing organization, including

obligations due from the clearing organization to customers or other

members.

0

12. In Sec. 190.10, revise paragraph (a) to read as follows:

Sec. 190.10 General.

(a) Notices. Unless instructed otherwise by the Commission, all

mandatory or discretionary notices to be given to the Commission under

this part shall be directed by electronic mail to

[email protected], with a copy sent by overnight mail to

Director, Division of Clearing and Risk, Commodity Futures Trading

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

DC 20581. For purposes of this part, notice to the Commission shall be

deemed to be given only upon actual receipt.

* * * * *

0

13. Revise appendix A to part 190 to read as follows:

Appendix A to Part 190--Bankruptcy Forms

Bankruptcy Appendix Form 1--Operation of the Debtor's Estate--Schedule

of Trustee's Duties

For the convenience of a prospective trustee, the Commission has

constructed an approximate schedule of important duties which the

trustee should perform during the early stages of a commodity broker

bankruptcy proceeding. The schedule includes duties required by this

part, subchapter IV of chapter 7 of the Bankruptcy Code as well as

certain practical suggestions, but it is only intended to highlight

the more significant duties and is not an exhaustive description of

all the trustee's responsibilities. It also assumes that the

commodity broker being liquidated is an FCM. Moreover, it is

important to note that the operating facts in a particular

bankruptcy proceeding may vary the schedule or obviate the need for

any of the particular activities.

All Cases

Date of Order for Relief

1. Assure that the commodity broker has notified the Commission,

its designated self-regulatory organization (``DSRO'') (if any), and

all applicable clearing organizations of which it is a member that a

petition or order for relief has been filed (Sec. 190.02(a)(1)).

2. Attempt to effectuate the transfer of entire customer

accounts wherein the commodity contracts are transferred together

with the money, securities, or other property margining,

guaranteeing, or securing the commodity contracts (hereinafter the

``transfer'').

3. Attempt to estimate shortfall of customer funds segregated

pursuant to sections 4d(a) and (b) of the Act; customer funds

segregated pursuant to section 4f of the Act; and the foreign

futures or foreign options secured amount, as defined in Sec. 1.3

of this chapter.

a. The trustee should:

i. Contact the DSRO (if any) and the clearing organizations and

attempt to effectuate a transfer with such shortfall under section

764(b) of the Code; notify the Commission for assistance (Sec.

190.02(a)(2) and

[[Page 6383]]

(e)(1), Sec. 190.06(b)(2), (e), (f)(3), (g)(2), and (h)) but

recognize that if there is a substantial shortfall, a transfer of

such funds or amounts is highly unlikely.

ii. If a transfer cannot be effectuated, liquidate all customer

commodity contracts that are margined, guaranteed, or secured by

funds or amounts with such shortfall, except dealer options and

specifically identifiable commodity contracts which are bona fide

hedging positions (as defined in Sec. 190.01(kk)(2)) with

instructions not to be liquidated. (See Sec. Sec. 190.02(f) and

190.06(d)(1)). (In this connection, depending upon the size of the

debtor and other complications of liquidation, the trustee should be

aware of special liquidation rules, and in particular the

availability under certain circumstances of book-entry liquidation

(Sec. 190.04(d)(1)(ii)).

b. If there is a small shortfall in any of the funds or amounts

listed in paragraph 2, negotiate with the clearing organization to

effect a transfer; notify the Commission (Sec. Sec. 190.02(a)(2)

and (e)(1), 190.06(b)(2), (e), (f)(3), (g)(2), and (h)).

4. Whether or not a transfer has occurred, liquidate or offset

open commodity contracts not eligible for transfer (e.g., deficit

accounts) (Sec. 190.06(e)(1)).

5. Offset all futures contracts and Cleared Swaps contracts

which cannot be settled in cash and which would otherwise remain

open either beyond the last day of trading (if applicable) or the

first day on which notice of intent to deliver may be tendered with

respect thereto, whichever occurs first; offset all long options on

a physical commodity which cannot be settled in cash, have value and

would be automatically exercised or would remain open beyond the

last day of exercise; and offset all short options on a physical

commodity which cannot be settled in cash (Sec. 190.02(f)(1)).

6. Compute estimated funded balance for each customer commodity

contract account containing open commodity contracts (Sec.

190.04(b)) (daily thereafter).

7. Make margin calls if necessary (Sec. 190.02(g)(1)) (daily

thereafter).

8. Liquidate or offset any open commodity contact account for

which a customer has failed to meet a margin call (Sec.

190.02(f)(1)) (daily thereafter).

9. Commence liquidation or offset of specifically identifiable

property described in Sec. 190.02(f)(2)(i) (property which has lost

10% or more of value) (and as appropriate thereafter).

10. Commence liquidation or offset of property described in

Sec. 190.02(f)(3) (``all other property'').

11. Be aware of any contracts in delivery position and rules

pertaining to such contracts (Sec. 190.05).

First Calendar Day After the Entry of an Order for Relief

1. If a transfer occurred on the date of entry of the order for

relief:

a. Liquidate any remaining open commodity contracts, except any

dealer option or specifically identifiable commodity contract

[hedge] (See Sec. 190.01(kk)(2) and Sec. 190.02(f)(1)), and not

otherwise transferred in the transfer.

b. Primary liquidation date for transferred or liquidated

commodity contracts (Sec. 190.01(ff)).

2. If no transfer has yet been effected, continue attempt to

negotiate transfer of open commodity contracts and dealer options

(Sec. 190.02(c)(1)).

3. Provide the clearing organization or Collecting Futures

Commission Merchant (as such term is defined in Sec. 22.1) with

assurances to prevent liquidation of open commodity contract

accounts available for transfer at the customer's instruction or

liquidate all open commodity contracts except those available for

transfer at a customer's instruction and dealer options.

Second Calendar Day After the Entry of an Order for Relief

If no transfer has yet been effected, request directly customer

instructions regarding transfer of open commodity contracts and

publish notice for customer instructions regarding the return of

specifically identifiable property other than commodity contracts

(Sec. Sec. 190.02(b) (1) and (2)).

Third Calendar Day After the Entry of an Order for Relief

1. Second publication date for customer instructions (Sec.

190.02(b)(1)) (publication is to be made on two consecutive days,

whether or not the second day is a business day).

2. Last day on which to notify the Commission with regard to

whether a transfer in accordance with section 764(b) of the

Bankruptcy Code will take place (Sec. 190.02(a)(2) and Sec.

190.06(e)).

Sixth Calendar Day After the Entry of an Order for Relief

Last day for customers to instruct the trustee concerning open

commodity contracts (Sec. 190.02(b)(2)).

Seventh Calendar Day After the Entry of an Order for Relief

1. If not previously concluded, conclude transfers under Sec.

190.06(e) and (f). (See Sec. 190.02(e)(1) and Sec.

190.06(g)(2)(i)(A)).

2. Transfer all open dealer option contracts which have not

previously been transferred (Sec. 190.06(f)(3)(i)).

3. Primary liquidation date (Sec. 190.01(ff)) (assuming no

transfers and liquidation effected for all open commodity contracts

for which no customer instructions were received by the sixth

calendar day).

4. Establishment of transfer accounts (Sec. 190.03(a)(1))

(assuming this is the primary liquidation date); mark such accounts

to market (Sec. 190.03(a)(2)) (daily thereafter until closed).

5. Liquidate or offset all remaining open commodity contracts

(Sec. 190.02(b)(2)).

6. If not done previously, notify customers of bankruptcy and

request customer proof of claim (Sec. 190.02(b)(4)).

Eighth Calendar Day After the Entry of an Order for Relief

Customer instructions due to trustee concerning specifically

identifiable property (Sec. 190.02(b)(1)).

Ninth Calendar Day After the Entry of an Order for Relief

Commence liquidation of specifically identifiable property for

which no arrangements for return have been made in accordance with

customer instructions (Sec. Sec. 190.02(b)(1), 190.03(c)).

Tenth Calendar Day After the Entry of an Order for Relief

Complete liquidation to the extent reasonably possible of

specifically identifiable property which has yet to be liquidated

and for which no customer instructions have been received (Sec.

190.03(c)).

Separate Procedures for Involuntary Petitions for Bankruptcy

1. Within one calendar day after notice of receipt of filing of

the petition in bankruptcy, the trustee should assure that proper

notification has been given to the Commission, the commodity

broker's designated self-regulatory organization (Sec.

190.02(a)(1)) (if any), and all applicable clearing organizations;

margin calls should be issued if necessary (Sec. 190.02(g)(2)).

2. On or before the seventh calendar day after the filing of a

petition in bankruptcy, the trustee should use his best efforts to

effect a transfer in accordance with Sec. 190.06(e) and (f) of all

open commodity contracts and equity held for or on behalf of

customers of the commodity broker (Sec. 190.02(e)(2)) unless the

debtor can provide certain assurances to the trustee.

Bankruptcy Appendix Form 2-- Request for Instructions Concerning Non-

Cash Property Deposited With (Commodity Broker)

Please take notice: On (date), a petition in bankruptcy was

filed by [against] (commodity broker). Those customers of (commodity

broker) who deposited certain kinds of non-cash property (see below)

with (commodity broker) may instruct the trustee of the estate to

return their property to them as provided below.

As no customer may obtain more than his or her proportionate

share of the property available to satisfy customer claims, if you

instruct the trustee to return your property to you, you will be

required to pay the estate, as a condition to the return of your

property, an amount determined by the trustee. If your property is

not margining an open contract, this amount will approximate the

difference between the market value of your property and your pro

rata share of the estate, as estimated by the trustee. If your

property is margining an open commodity contract, this amount will

be approximately the full fair market value of the property on the

date of its return.

Kinds of Property to Which This Notice Applies

1. Any security deposited as margin which, as of (date petition

was filed), was securing an open commodity contract and is:

--registered in your name,

--not transferrable by delivery, and

--not a short-term obligation.

2. Any fully-paid, non-exempt security held for your account in

which there were no open commodity contracts as of (date

[[Page 6384]]

petition was filed). (Rather than the return, at this time, of the

specific securities you deposited with (commodity broker), you may

instead request now, or at any later time, that the trustee purchase

``like-kind'' securities of a fair market value which does not

exceed your proportionate share of the estate).

3. Any warehouse receipt, bill of lading or other document of

title deposited as margin which, as of (date petition was filed),

was securing an open commodity contract and--can be identified in

(commodity broker)'s records as being held for your account, and--is

neither in bearer form nor otherwise transferable by delivery.

4. Any warehouse receipt bill of lading or other document of

title, or any commodity received, acquired or held by (commodity

broker) to make or take delivery or exercise from or for your

account and which--can be identified in (commodity broker)'s records

as received from or for your account as held specifically for the

purpose of delivery or exercise.

5. Any cash or other property deposited to make or take delivery

on a commodity contract may be eligible to be returned. The trustee

should be contacted directly for further information if you have

deposited such property with (commodity broker) and desire its

return.

Instructions must be received by (the 5th calendar day after 2d

publication date) or the trustee will liquidate your property. (If

you own such property but fail to provide the trustee with

instructions, you will still have a claim against (commodity broker)

but you will not be able to have your specific property returned to

you).

Note: Prior to receipt of your instructions, circumstances may

require the trustee to liquidate your property, or transfer your

property to another broker if it is margining open commodity

contracts. If your property is transferred and your instructions

were received within the required time, your instructions will be

forwarded to the new broker.

Instructions should be directed to: (Trustee's name, address,

and/or telephone).

Even if you request the return of your property, you must also

pay the trustee the amount he specifies and provide the trustee with

proof of your claim before (the 7th calendar day after 2d

publication date) or your property will be liquidated. (Upon receipt

of customer instructions to return property, the trustee will mail

the sender a form which describes the information he must provide to

substantiate his claim).

Note: The trustee is required to liquidate your property despite

the timely receipt of your instructions, money, and proof of claim

if, for any reason, your property cannot be returned by (close of

business on the 7th calendar day after 2d publication date).

Bankruptcy Appendix Form 3--Request for Instructions Concerning

Transfer of Your Hedge Contracts Held by (Commodity Broker)

United States Bankruptcy Court ----District of ----In re ----,

Debtor, No. ----.

Please take notice: On (date), a petition in bankruptcy was filed by

[against] (commodity broker).

You indicated when your hedge account was opened that the

commodity contracts in your hedge account should not be liquidated

automatically in the event of the bankruptcy of (commodity broker),

and that you wished to provide instructions at this time concerning

their disposition.

Instructions to transfer your commodity contracts and a cash

deposit (as described below) must be received by the trustee by (the

6th calendar day after entry of order for relief) or your commodity

contracts will be liquidated.

If you request the transfer of your commodity contracts, prior

to their transfer, you must pay the trustee in cash an amount

determined by the trustee which will approximate the difference

between the value of the equity margining your commodity contracts

and your pro rata share of the estate plus an amount constituting

security for the nonrecovery of any overpayments. In your

instructions, you should specify the broker to which you wish your

commodity contracts transferred.

Be further advised that prior to receipt of your instructions,

circumstances may, in any event, require the trustee to liquidate or

transfer your commodity contracts. If your commodity contracts are

so transferred and your instructions are received, your instructions

will be forwarded to the new broker.

Note also that the trustee is required to liquidate your

positions despite the timely receipt of your instructions and money

if, for any reason, you have not made arrangements to transfer and/

or your contracts are not transferred by (7 calendar days after

entry of order for relief).

Instructions should be sent to: (Trustee's or designee's name,

address, and/or telephone). [Instructions may also be provided by

phone].

Bankruptcy Appendix Form 4--Proof of Claim

[Note to trustee: As indicated in Sec. 190.02(d), this form is

provided as a guide to the trustee and should be modified as

necessary depending upon the information which the trustee needs at

the time a proof of claim is requested and the time provided for a

response.]

Proof of Claim

United States Bankruptcy Court ----District of ----In re ----,

Debtor, No. ----.

Return this form by ---- or your claim will be barred (unless

extended, for good cause only).

I. [If claimant is an individual claiming for himself] The

undersigned, who is the claimant herein, resides at ----.

[If claimant is a partnership claiming through a member] The

undersigned, who resides at ----, is a member of ----, a

partnership, composed of the undersigned and ----, of ----, and

doing business at ----, and is duly authorized to make this proof of

claim on behalf of the partnership.

[If claimant is a corporation claiming though a duly authorized

officer] The undersigned, who resides at ---- is the ---- of ----, a

corporation organized under the laws of ---- and doing business at

----, and is duly authorized to make this proof of claim on behalf

of the corporation.

[If claim is made by agent] The undersigned, who resides at ----

, is the agent of ----, and is duly authorized to make this proof of

claim on behalf of the claimant.

II. The debtor was, at the time of the filing of the petition

initiating this case, and still is, indebted to this claimant for

the total sum of $ ----.

III. List EACH account on behalf of which a claim is being made

by number and name of account holder[s], and for EACH account,

specify the following information:

a. Whether the account is a futures, foreign futures, leverage,

option (if an option account, specify whether exchange-traded,

dealer or cleared swap), ``delivery'' account, or a cleared swaps

account. A ``delivery'' account is one which contains only documents

of title, commodities, cash, or other property identified to the

claimant and deposited for the purposes of making or taking delivery

on a commodity underlying a commodity contract or for payment of the

strike price upon exercise of an option.

b. The capacity in which the account is held, as follows (and if

more than one is applicable, so state):

1. [The account is held in the name of the undersigned in his

individual capacity];

2. [The account is held by the undersigned as guardian,

custodian, or conservator for the benefit of a ward or a minor under

the Uniform Gift to Minors Act];

3. [The account is held by the undersigned as executor or

administrator of an estate];

4. [The account is held by the undersigned as trustee for the

trust beneficiary];

5. [The account is held by the undersigned in the name of a

corporation, partnership, or unincorporated association];

6. [The account is held as an omnibus customer account of the

undersigned futures commission merchant];

7. [The account is held by the undersigned as part owner of a

joint account];

8. [The account is held by the undersigned in the name of a plan

which, on the date the petition in bankruptcy was filed, had in

effect a registration statement in accordance with the requirements

of Sec. 1031 of the Employee Retirement Income Security Act of 1974

and the regulations thereunder]; or

9. [The account is held by the undersigned as agent or nominee

for a principal or beneficial owner (and not described above in

items 1-8 of this II, b)].

10. [The account is held in any other capacity not described

above in items 1-9 of this II, b. Specify the capacity].

c. The equity, as of the date the petition in bankruptcy was

filed, based on the commodity contracts in the account.

d. Whether the person[s] (including a general partnership,

limited partnership, corporation, or other type of association) on

whose behalf the account is held is one of the following persons OR

whether one of the following persons, alone or jointly, owns 10% or

more of the account:

1. [If the debtor is an individual--

A. Such individual;

B. Relative (as defined below in item 8 of this III.d) of the

debtor or of a general partner of the debtor;

[[Page 6385]]

C. Partnership in which the debtor is a general partner;

D. General partner of the debtor; or

E. Corporation of which the debtor is a director, officer, or

person in control];

2. [If the debtor is a partnership--

A. Such partnership;

B. General partner in the debtor;

C. Relative (as defined in item 8 of this III.d) of a general

partner in, general partner of, or person in control of the debtor;

D. Partnership in which the debtor is a general partner;

E. General partner of the debtor; or

F. Person in control of the debtor];

3. [If the debtor is a limited partnership--

A. Such limited partnership;

B. A limited or special partner in such partnership whose duties

include:

i. The management of the partnership business or any part

thereof;

ii. The handling of the trades or customer funds of customers of

such partnership;

iii. The keeping of records pertaining to the trades or customer

funds of customers of such partnership; or

iv. The signing or co-signing of checks or drafts on behalf of

such partnership];

4. [If the debtor is a corporation or association (except a

debtor which is a futures commission merchant and is also a

cooperative association of producers)--

A. Such corporation or association;

B. Director of the debtor;

C. Officer of the debtor;

D. Person in control of the debtor;

E. Partnership in which the debtor is a general partner;

F. General partner of the debtor;

G. Relative (as defined in item 8 of this III.d) of a general

partner, director, officer, or person in control of the debtor;

H. An officer, director or owner of ten percent or more of the

capital stock of such organization];

5. [If the debtor is a futures commission merchant which is a

cooperative association of producers--

Shareholder or member of the debtor which is an officer,

director or manager];

6. [An employee of such individual, partnership, limited

partnership, corporation or association whose duties include:

A. The management of the business of such individual,

partnership, limited partnership, corporation or association or any

part thereof;

B. The handling of the trades or customer funds of customers of

such individual, partnership, limited partnership, corporation or

association;

C. The keeping of records pertaining to the trades or funds of

customers of such individual, partnership, limited partnership,

corporation or association; or

D. The signing or co-signing of checks or drafts on behalf of

such individual, partnership, limited partnership, corporation or

association];

7. [Managing agent of the debtor];

8. [A spouse or minor dependent living in the same household of

ANY OF THE FOREGOING PERSONS, or any other relative, regardless of

residency, (unless previously described in items 1-B, 2-C, or 4-G of

this III.d) defined as an individual related by affinity or

consanguinity within the third degree as determined by the common

law, or individual in a step or adoptive relationship within such

degree];

9. [``Affiliate'' of the debtor, defined as:

A. Entity that directly or indirectly owns, controls, or holds

with power to vote, 20 percent or more of the out-standing voting

securities of the debtor, other than an entity that holds such

securities--

i. In a fiduciary or agency capacity without sole discretionary

power to vote such securities; or

ii. Solely to secure a debt, if such entity has not in fact

exercised such power to vote;

B. Corporation 20 percent or more of whose outstanding voting

securities are directly or indirectly owned, con-trolled, or held

with power to vote, by the debtor, or by an entity that directly or

indirectly owns, controls, or holds with power to vote, 20 percent

or more of the outstanding voting securities of the debtor, other

than an entity that holds such securities--

i. In a fiduciary or agency capacity without sole discretionary

power to vote such securities; or

ii. Solely to secure a debt, if such entity has not in fact

exercised such power to vote;

C. Person whose business is operated under a lease or operating

agreement by the debtor, or person substantially all of whose

property is operated under an operating agreement with the debtor;

D. Entity that otherwise, directly or indirectly, is controlled

by or is under common control with the debtor];

E. Entity that operates the business or all or substantially all

of the property of the debtor under a lease or operating agreement;

or

F. Entity that otherwise, directly or indirectly, controls the

debtor; or

10. [Any of the persons listed in items 1-7 above of this III.d

if such person is associated with an affiliate (see item 9 above) of

the debtor as if the affiliate were the debtor].

e. Whether the account is a discretionary account. (If it is,

the name in which the ``attorney in fact'' is held).

f. If the account is a joint account, the amount of the

claimant's percentage interest in the account. (Also specify whether

participants in a joint account are claiming separately or jointly).

g. Whether the claimant's positions in security futures products

are held in a futures account or securities account, as those terms

are defined in Sec. 1.3 of this chapter.

IV. Describe all claims against the debtor not based upon a

commodity contract account of the claimant (e.g., if landlord, for

rent; if customer, for misrepresentation or fraud).

V. Describe all claims of the DEBTOR against the CLAIMANT not

already included in the equity of a commodity contract account[s] of

the claimant (see III.c above).

VI. Describe any deposits of money, securities or other property

held by or for the debtor from or for the claimant, and indicate if

any of this property was included in your answer to III.c above.

VII. Of the money, securities, or other property described in VI

above, identify any which consists of the following:

a. With respect to property received, acquired, or held by or

for the account of the debtor from or for the account of the

claimant to margin, guarantee or secure an open commodity contract,

the following:

1. Any security which as of the filing date is:

A. Held for the claimant's account;

B. Registered in the claimant's name;

C. Not transferable by delivery; and

D. Not a short term obligation; or

2. Any warehouse receipt, bill of lading or other document of

title which as of the filing date:

A. Can be identified on the books and records of the debtor as

held for the account of the claimant; and

B. Is not in bearer form and is not otherwise transferable by

delivery.

b. With respect to open commodity contracts, and except as

otherwise provided below in item g of this VII, any such contract

which:

1. As of the date the petition in bankruptcy was filed, is

identified on the books and records of the debtor as held for the

account of the claimant;

2. Is a bona fide hedging position or transaction as defined in

Rule 1.3 of the Commodity Futures Trading Commission (``CFTC'') or

is a commodity option transaction which has been determined by a

registered entity to be economically appropriate to the reduction of

risks in the conduct and management of a commercial enterprise

pursuant to rules which have been approved by the CFTC pursuant to

section 5c(c) of the Commodity Exchange Act;

3. Is in an account designated in the accounting records of the

debtor as a hedging account.

c. With respect to warehouse receipts, bills of lading or other

documents of title, or physical commodities received, acquired, or

held by or for the account of the debtor for the purpose of making

or taking delivery or exercise from or for the claimant's account,

any such document of title or commodity which as of the filing date

can be identified on the books and records of the debtor as received

from or for the account of the claimant specifically for the purpose

of delivery or exercise.

d. Any cash or other property deposited prior to bankruptcy to

pay for the taking of physical delivery on a long commodity contract

or for payment of the strike price upon exercise of a short put or a

long call option contract on a physical commodity, which cannot be

settled in cash, in excess of the amount necessary to margin such

commodity contract prior to the notice date or exercise date which

cash or other property is identified on the books and records of the

debtor as received from or for the account of the claimant within

three or less days of the notice date or three or less days of the

exercise date specifically for the purpose of payment of the notice

price upon taking delivery or the strike price upon exercise.

e. The cash price tendered for any property deposited prior to

bankruptcy to make physical delivery on a short commodity contract

or for exercise of a long put or a short call option contract on a

physical commodity, which cannot be settled in cash,

[[Page 6386]]

to the extent it exceeds the amount necessary to margin such

contract prior to the notice exercise date which property is

identified on the books and records of the debtor as received from

or for the account of the claimant within three or less days of the

notice date or of the exercise date specifically for the purpose of

a delivery or exercise.

f. Fully paid, non-exempt securities identified on the books and

records of the debtor as held by the debtor for or on behalf of the

commodity contract account of the claimant for which, according to

such books and records as of the filing date, no open commodity

contracts were held in the same capacity.

g. Open commodity contracts transferred to another futures

commission merchant by the trustee.

VIII. Specify whether the claimant wishes to receive payment in

kind, to the extent possible, for any claim for securities.

IX. Attach copies of any documents which support the information

provided in this proof of claim, including but not limited to

customer confirmations, account statements, and statements of

purchase or sale.

This proof of claim must be filed with the trustee no later than

----, or your claim will be barred unless an extension has been

granted, available only for good cause.

Return this form to:

(Trustee's name (or designee's) and address)

-----------------------------------------------------------------------

Dated:-----------------------------------------------------------------

(Signed)---------------------------------------------------------------

Penalty for Presenting Fraudulent Claim. Fine of not more than

$5,000 or imprisonment for not more than five years or both--Title

18, U.S.C. 152.

(Approved by the Office of Management and Budget under control

number 3038-0021)

0

14. Revise appendix B to part 190 to read as follows:

Appendix B to Part 190--Special Bankruptcy Distributions

Framework 1--Special Distribution of Customer Funds for Futures

Contracts When FCM Participated in Cross-Margining

The Commission has established the following distributional

convention with respect to ``customer funds'' (as Sec. 1.3 of this

chapter defines such term) for futures contracts held by a futures

commission merchant (FCM) that participated in a cross-margining

(XM) program which shall apply if participating market professionals

sign an agreement that makes reference to this distributional rule

and the form of such agreement has been approved by the Commission

by rule, regulation or order:

All customer funds for futures contracts held in respect of XM

accounts, regardless of the product that customers holding such

accounts are trading, are required by Commission order to be

segregated separately from all other customer segregated funds. For

purposes of this distributional rule, XM accounts will be deemed to

be commodity interest accounts and securities held in XM accounts

will be deemed to be received by the FCM to margin, guarantee or

secure commodity interest contracts. The maintenance of property in

an XM account will result in subordination of the claim for such

property to certain non-XM customer claims and thereby will operate

to cause such XM claim not to be treated as a customer claim for

purposes of the Securities Investors Protection Act and the XM

securities to be excluded from the securities estate. This creates

subclasses of futures customer accounts, an XM account and a non-XM

account (a person could hold each type of account), and results in

two pools of segregated funds belonging to futures customers: An XM

pool and a non-XM pool. In the event that there is a shortfall in

the non-XM pool of customer class segregated funds and there is no

shortfall in the XM pool of customer segregated funds, all futures

customer net equity claims, whether or not they arise out of the XM

subclass of accounts, will be combined and will be paid pro rata out

of the total pool of available XM and non-XM customer funds for

futures contracts. In the event that there is a shortfall in the XM

pool of customer segregated funds and there is no shortfall in the

non-XM pool of customer segregated funds, then futures customer net

equity claims arising from the XM subclass of accounts shall be

satisfied first from the XM pool of customer segregated funds, and

futures customer net equity claims arising from the non-XM subclass

of accounts shall be satisfied first from the non-XM customer

segregated funds. Furthermore, in the event that there is a

shortfall in both the non-XM and XM pools of customer segregated

funds: (1) If the non-XM shortfall as a percentage of the

segregation requirement in the non-XM pool is greater than or equal

to the XM shortfall as a percentage of the segregation requirement

in the XM pool, all futures customer net equity claims will be paid

pro rata; and (2) if the XM shortfall as a percentage of the

segregation requirement in the XM pool is greater than the non-XM

shortfall as a percentage of the segregation requirement of the non-

XM pool, non-XM futures customer net equity claims will be paid pro

rata out of the available non-XM segregated funds, and XM futures

customer net equity claims will be paid pro rata out of the

available XM segregated funds. In this way, non-XM customers will

never be adversely affected by an XM shortfall.

The following examples illustrate the operation of this

convention. The examples assume that the FCM has two customers, one

with exclusively XM accounts and one with exclusively non-XM

accounts. However, the examples would apply equally if there were

only one customer, with both an XM account and a non-XM account.

BILLING CODE 6351-01-P

[[Page 6387]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.006

[[Page 6388]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.007

[[Page 6389]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.008

[[Page 6390]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.009

[[Page 6391]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.010

[[Page 6392]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.011

[[Page 6393]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.012

[[Page 6394]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.013

[[Page 6395]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.014

[[Page 6396]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.015

[[Page 6397]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.016

[[Page 6398]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.017

[[Page 6399]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.018

[[Page 6400]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.019

[[Page 6401]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.020

[[Page 6402]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.021

[[Page 6403]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.022

[[Page 6404]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.023

[[Page 6405]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.024

[[Page 6406]]

[GRAPHIC] [TIFF OMITTED] TR07FE12.025

[[Page 6407]]

Issued in Washington, DC on January 11, 2012, by the Commission.

David A. Stawick,

Secretary of the Commission.

Appendices to Protection of Cleared Swaps Customer Contracts and

Collateral; Conforming Amendments to the Commodity Broker Bankruptcy

Provisions--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 Chilton,

O'Malia and Wetjen voted in the affirmative; Commissioner Sommers

voted in the negative

Appendix 2--Statement of Chairman Gary Gensler

I support the final rules on segregation of customer funds for

cleared swaps. These rules are an important step forward in

protecting customers and reducing the risk of swaps trading. The

rules carry out the Dodd-Frank Wall Street Reform and Consumer

Protection Act (Dodd-Frank Act) mandate that futures commission

merchants (FCMs) and derivatives clearing organizations (DCOs)

segregate customer collateral supporting cleared swaps. FCMs and

DCOs must hold customer collateral in a separate account from that

belonging to the FCM or DCO. It prohibits clearing organizations

from using the collateral of non-defaulting, innocent customers to

protect themselves and their clearing members. For the first time,

customer money must be protected individually all the way to the

clearinghouse.

We received a tremendous amount of public input on this rule,

including through two roundtables, as well as through comments on an

advanced notice of proposed rulemaking and a proposal. This rule

builds on customer protections included in the clearinghouse core

principles rule we finalized in October requiring DCOs to collect

initial margin on a gross basis for their clearing members' customer

accounts.

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

Today, the Commodity Futures Trading Commission (the

``Commission'') is voting to finalize a rulemaking on protection of

cleared swaps customer collateral.\307\ Whereas I support this

rulemaking, I believe that it is important to detail its

limitations, so that we do not offer market participants a

misleading sense of comfort in light of the collapse of MF Global,

Inc. (``MF Global''). As I will explain further, the Commission has

much more work to do to increase confidence in the customer

protections that our regulations offer.

---------------------------------------------------------------------------

\307\ Protection of Cleared Swaps Customer Contracts and

Collateral; Conforming Amendments to the Commodity Broker Bankruptcy

Provisions (to be codified at 17 CFR parts 22 and 190) (referenced

herein as the ``rulemaking''), available at: http://www.cftc.gov/PressRoom/Events/opaevent_cftcdoddfrank011112.

---------------------------------------------------------------------------

This rulemaking does not address MF Global.

First, this rulemaking does not address MF Global. The

rulemaking is entitled, in part, Protection of Cleared Swaps

Customer Contracts and Collateral. Therefore, it benefits cleared

swaps customers, and not futures customers (who are bearing the

brunt of MF Global). This rulemaking would not have prevented a

shortfall in the customer funds of the ranchers and farmers that

transact daily in the futures market. Nor would it have expedited

the transfer of positions and collateral belonging to such customers

in the event of a collapse similar to that of MF Global.

This rulemaking may expose swaps customers to more risk.

Second, this rulemaking only addresses one of three categories

of risk that an intermediary--like MF Global--can pose to its

customers. The three categories of risk are (i) ``fellow-customer''

risk, (ii) operational risk, and (iii) investment risk. By its own

admission, this rulemaking only protects against ``fellow-customer''

risk. It does not protect against operational risk--namely, the risk

that an intermediary improperly segregates cleared swaps customer

collateral.\308\ Moreover, it does not protect against investment

risk--namely, the risk that an intermediary experiences losses on

its investment of cleared swaps customer collateral, which it cannot

cover using its capital.\309\ To be plain, I support limiting

intermediaries from investing customer collateral in risky

instruments--regardless of whether such collateral margins futures

or swaps contracts.\310\ However, I am not na[iuml]ve enough to

believe that such limitations--without additional Commission

oversight or action--would be sufficient. I have warned against

complacency in the past.\311\ I reiterate such warning here.

---------------------------------------------------------------------------

\308\ See section I(D)(2) of the preamble to this rulemaking.

\309\ Id.

\310\ See sections 22.2(e)(1) and 22.3(d) of the rule text to

this rulemaking (to be codified at 17 CFR 22.2(e)(1) and 22.3(d))

(limiting an FCM and a DCO to investing cleared swaps customer

collateral in instruments enumerated in regulation 1.25).

\311\ See ``Opening Statement of Commissioner Scott D.

O'Malia'', dated December 5, 2011, available at: http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement120511.

---------------------------------------------------------------------------

Under this rulemaking, what happens if an intermediary--like MF

Global--becomes insolvent as operational or investment

irregularities are revealed? Basically, under the Bankruptcy

Code,\312\ cleared swaps customers would share pro rata in any

shortfall. A shortfall would complicate the porting of cleared swaps

customer contracts and associated collateral, notwithstanding the

enhanced recordkeeping and reporting requirements of this

rulemaking.

---------------------------------------------------------------------------

\312\ See section 766(h) of the Bankruptcy Code, 11 U.S.C.

766(h).

---------------------------------------------------------------------------

By not protecting against operational and investment risk, this

rulemaking may have the effect of exposing some swaps customers to

more risk than they currently bear in the over-the-counter markets.

Since December 2, 2011, we have received eight comment letters from

end-users, many of which explicitly asked the Commission to not

finalize this rulemaking until it explores other alternatives that

may provide greater protection.\313\ These end-users include

Fidelity Investments, the Committee on Investment of Employee

Benefit Assets (``CIEBA''), and the Federal Home Loan Banks.

According to many of these comment letters, swaps customers in the

over-the-counter markets currently have the option to enter into

tri-party custody agreements. In general, these agreements may

provide superior protection to this rulemaking against not only

fellow-customer risk, but also operational and investment risk.\314\

---------------------------------------------------------------------------

\313\ See comment letters from (i) Managed Funds Association,

dated December 2, 2011; (ii) Fidelity Investments, dated December 8,

2011; (iii) Och-Ziff Capital Management Group, dated circa December

12, 2011; (iv) State Street Corporation, dated December 14, 2011;

(v) the Committee on Investment of Employee Benefit Assets, dated

December 22, 2011; (vi) the European Federation for Retirement

Provision (``EFRP'') and APG Algemene Pensioen Groep, N.V.

(``APG''), dated December 23, 2011; (vii) the Federal Home Loan

Banks, dated January 9, 2012; and (viii) BlueMountain Capital

Management, LLC, Elliot Management Corporation, Moore Capital

Management, LP, Paulson & Co. Inc., and Tudor Investment

Corporation, dated January 9, 2012 (the ``Moore et. al. letter'').

In each case, the comment letters were filed in answer to the notice

of proposed rulemaking on the Protection of Cleared Swaps Customer

Contracts and Collateral; Conforming Amendments to the Commodity

Broker Bankruptcy Provisions, 76 FR 33818, Jun. 9, 2011. All comment

letters to such notice are available at: http://www.cftc.gov/idc/groups/public/@lrfederalregister/documents/file/2011-10737a.pdf.

\314\ See, e.g., comment letters from (i) Fidelity Investments,

dated December 8, 2011; (ii) Och-Ziff Capital Management Group,

dated circa December 12, 2011; and (iii) CIEBA, dated December 22,

2011.

---------------------------------------------------------------------------

I understand that staff has been directed to ``carefully

analyze'' various proposals that commenters have advanced ``with the

goal of developing proposed rules that provide additional protection

for collateral belonging to market participants.'' \315\ This is a

laudable goal. I only hope that we achieve this goal before

mandatory clearing becomes effective.\316\ Otherwise, we may be

subjecting

[[Page 6408]]

a substantial portion of cleared swaps customer collateral to

operational risk and investment risk. To provide some context, such

collateral--in the aggregate--may amount to anywhere from $500

billion to $833 billion.\317\ As one commenter stated, ``[i]t would

seem to be a perverse result that, because of rulemaking promulgated

under the Dodd-Frank * * * Act, which was * * * meant to enhance the

safety of the over-the-counter markets by reducing systemic and

counterparty risks, market participants were to be placed [in] [sic]

a worse position with regard to risk than they are currently.''

\318\ Other commenters supported this statement.\319\

---------------------------------------------------------------------------

\315\ Section I(F) of the preamble to this rulemaking.

\316\ See comment letter from CIEBA, dated December 22, 2011

(stating that ``* * * the Commission should not permit mandatory

clearing of swaps to become effective until a physical segregation

option, such as the individual settlement account * * * or another

satisfactory structure, has been made available to swaps

customers.'' [emphasis original]).

This rulemaking does attempt to resolve one request repeated in

the comment letters filed since December 2, 2011. In section I(F) of

the preamble, the rulemaking makes clear that the Commission's 2005

Amendment to Financial and Segregation Interpretation No. 10, 70 FR

24768, May 11, 2005 (``Segregation Interpretation 10-1''), does not

apply to cleared swaps. Therefore, Segregation Interpretation 10-1

would not prohibit an intermediary from entering into a tri-party

custody agreement with a cleared swaps customer. However, this

rulemaking similarly makes clear that Segregation Interpretation No.

10, which the Commission issued in 1984, would continue to apply to

collateral segregated according to a tri-party custody agreement. In

other words, cleared swaps customers could not avoid the pro rata

distribution provisions of the Bankruptcy Code (as well as

regulation Part 190). Therefore, the resolution in this rulemaking

may provide commenters with cold comfort.

\317\ Section VII(B)(2) of the preamble to this rulemaking

(citing estimates provided by CME Group, Inc. and the International

Swaps and Derivatives Association, Inc.).

\318\ Comment letter from Och-Ziff Capital Management Group,

dated circa December 12, 2011.

\319\ See the Moore et. al. letter (stating ``[g]iven the

crucial role that central clearing will play in reducing systemic

risk in the swaps market, we see no valid argument to suggest that

customers to cleared swaps should be subject to weaker regulatory

protections than those afforded counterparties to uncleared

swaps.''); and comment letter from EFRP and APG, dated December 23,

2011 (stating ``EFRP and APG support the CFTC's efforts to reduce

risk, enhance transparency, and promote market integrity, as the

U.S. Congress intended by enacting Title VII of the Dodd-Frank * * *

Act. It should be clear though that such reform will only improve

financial stability, if it is prudent from the perspective of end

users, such as pension funds. However, as currently framed the

Proposed Rules subject us to increased risks.'').

---------------------------------------------------------------------------

This rulemaking may imperfectly address fellow-customer risk.

Let me now say a few words on ``fellow-customer'' risk.

Preliminarily, what is it? According to this rulemaking, it is the

risk that a derivatives clearing organization (``DCO'') will access

the collateral of non-defaulting cleared swaps customers to cure the

default of an intermediary.\320\ Under what circumstances could a

DCO access such collateral? Under this rulemaking, there are two

circumstances and they have to occur simultaneously. First, a swaps

customer would need to default to an intermediary. Second, as a

result of such default, the intermediary must be unable to meet its

DCO obligations. In short, swaps customer losses must exceed the

capitalization of the intermediary.\321\ As this rulemaking

acknowledges, ``fellow-customer'' risk is rare.\322\ In comparison,

according to notices received by the Commission, operational risk is

far more prevalent.\323\

---------------------------------------------------------------------------

\320\ Section I(B)(6) of the preamble to this rulemaking.

\321\ Id.

\322\ Section VII(B)(2) of the preamble to this rulemaking

(stating that ``double defaults are rare events.'').

\323\ Regulation 1.12(h) requires an intermediary that knows or

should know that it is under-segregated to report to the Commission

and its designated self-regulatory organization. Usually, under-

segregation results from minor operational failure, and does not

lead to the collapse of an intermediary. However, a pattern of

operational failure would draw greater attention and inquiry.

---------------------------------------------------------------------------

Of course, just because a risk is rare does not mean that the

Commission should not protect against it. But let us take a closer

look at the protection that this rulemaking is offering. First,

although it is close to 230 pages, with nearly 100 pages in rule

text, only a couple of the provisions of this rulemaking address

``fellow-customer'' risk. They are regulations 22.11 to 22.16.\324\

The remainder of regulation Part 22, as well as the majority of

changes to regulation Part 190 (Bankruptcy), simply aligns the

cleared swaps segregation regime with the existing futures

segregation regime.\325\ As MF Global reveals, the futures

segregation regime may have some vulnerabilities. In this

rulemaking, the Commission is unthinkingly replicating these

vulnerabilities.

---------------------------------------------------------------------------

\324\ Sections 22.11 to 22.16 of the rule text to this

rulemaking (to be codified at 17 CFR 22.11 (Information to be

Provided Regarding Customers and Their Cleared Swaps), 22.12

(Information to be Maintained Regarding Cleared Swaps Customer

Collateral), 22.13 (Additions to Cleared Swaps Customer Collateral),

22.14 (Futures Commission Merchant Failure to Meet a Customer Margin

Call in Full), 22.15 (Treatment of Cleared Swaps Collateral on an

Individual Basis), 22.16 (Disclosures to Customers)).

\325\ See, e.g., section 22.10 to the rule text of this

rulemaking (to be codified at 17 CFR 22.10 Application of other

Regulatory Provisions).

---------------------------------------------------------------------------

Second, this rulemaking only offers protection to a portion of

the cleared swaps customer collateral that an intermediary holds. In

general, cleared swaps customer collateral may fall within two

categories: (i) collateral needed to support contracts; and (ii)

collateral in excess of that needed to support contracts (``Excess

Collateral''). The Commission, in its final rulemaking on

Derivatives Clearing Organization General Provisions and Core

Principles, states that a DCO must require its clearing members to

collect Excess Collateral.\326\ However, as certain commenters have

astutely observed, and as this rulemaking readily admits, this

rulemaking does not protect Excess Collateral deposited outside of

the DCO.\327\ So, the Commission has required cleared swaps

customers to provide collateral that it then does not protect.

---------------------------------------------------------------------------

\326\ See Derivatives Clearing Organization General Provisions

and Core Principles, 76 FR 69334, 69438, Nov. 8, 2011 (to be

codified at 17 CFR 39.13(g)(8)).

\327\ See section III(B) of the preamble to this rulemaking

(stating ``CME notes that a portion of the Cleared Swaps Customer

Collateral will be held at the FCM, not the DCO, and that this

collateral will not be protected by Complete Legal Segregation in

the event that an FCM becomes insolvent. This proposition is true

but is of little or no relevance to the comparison of Complete Legal

Segregation with the Futures Model favored by these commenters.'').

---------------------------------------------------------------------------

Third, this rulemaking cites, as a major benefit, the

possibility of enhanced portability of cleared swaps customer

contracts, as well as associated collateral, after an intermediary

defaults due to ``fellow-customer'' risk.\328\ The rulemaking sets

forth more stringent recordkeeping and reporting requirements as a

foundation for enhanced portability. As commenters have identified,

these requirements have two significant weaknesses.

---------------------------------------------------------------------------

\328\ Section I(D)(2) of the preamble to this rulemaking. To be

fair, this rulemaking does make the point that enhanced

recordkeeping and reporting requirements may also foster portability

in the event of operational or investment risk.

---------------------------------------------------------------------------

Preliminarily, to maximize portability, each intermediary must

(i) keep complete and accurate records and (ii) comply with

reporting requirements. As MF Global and earlier intermediary

collapses have demonstrated, a distressed intermediary may not

prioritize recordkeeping and reporting.\329\

---------------------------------------------------------------------------

\329\ See, e.g., comment letters from (i) the Federal Home Loan

Banks, dated January 9, 2012 and (ii) CIEBA, dated December 22,

2011. See also the Moore et. al. letter.

---------------------------------------------------------------------------

Secondarily, despite requests from various commenters (including

the Association of Institutional Investors and Vanguard), this

rulemaking does not provide guidance on the concrete steps that a

DCO should take to ensure that an intermediary is providing accurate

and complete information. Instead, the rulemaking states: ``* * *

the DCO should take the steps appropriate, in the professional

judgment of its staff, to verify that [intermediaries] have and are

using systems and appropriate procedures to track accurately, and to

provide to the DCO accurately, the positions of each customer.''

\330\ In light of MF Global, the Commission should give this

provision--and the requests of commenters--more thought.

---------------------------------------------------------------------------

\330\ Section IV(K) of the preamble to this rulemaking.

---------------------------------------------------------------------------

Finally, this rulemaking is silent on one important factor that

may affect the portability of cleared swaps customer contracts, as

well as associated collateral--namely, whether the intermediary is

both a futures commission merchant and a securities broker-dealer. I

am touching on this issue in the interest of full disclosure.

A comprehensive solution is needed.

Despite its limitations, I ultimately support this rulemaking.

As I have stated previously, the Commission must immediately take

action to renew public confidence in our customer protection

regime.\331\ Although this rulemaking largely replicates futures

segregation, this rulemaking--if it works as promised in an

intermediary bankruptcy--may enhance portability for cleared swaps

customers in the event of ``fellow-customer'' risk. Even the

possibility of such enhancement is non-negligible--especially in the

volatile economic environment that exists today.

---------------------------------------------------------------------------

\331\ See Statement on MF Global: Next Steps, dated November 16,

2011, available at: http://www.cftc.gov/PressRoom/SpeechesTestimony/omaliastatement111611.

---------------------------------------------------------------------------

However, this rulemaking also vividly illustrates some of my

concerns regarding our Dodd-Frank rulemaking process. First, the

Commission has a duty to regulate the swaps market. It also owes a

duty to futures customers. Right now, it is unclear from this

rulemaking how the Commission means to address futures customer

concerns. I understand that the investigation into the MF Global

collapse is ongoing. However, the Commission could examine the

manner in

[[Page 6409]]

which operational and investment risks contribute to

undersegregation. Our undersegregation reports would help us with

such an examination, as well as the detection of potential causal

patterns for undersegregation.\332\

---------------------------------------------------------------------------

\332\ See supra note 17.

---------------------------------------------------------------------------

Second, instead of rushing to complete this rulemaking, I would

have preferred that the Commission focus on providing a more

comprehensive solution to operational, investment, and ``fellow-

customer'' risk. Moreover, I would have preferred that the

Commission more fully explore the alternatives that various

commenters have advanced, which may provide greater protection for

futures, as well as cleared swaps customer, collateral. Further, it

would have been helpful for the Commission to have weighed, in one

analysis, the benefits and costs of offering a combination of (i)

this rulemaking and (ii) one or more alternatives.

Finally, the Commission needs to contemplate whether any

alternative would be workable in light of the pro rata distribution

provisions of the Bankruptcy Code. If not, the Commission should

contemplate recommending to Congress changes to the Bankruptcy Code.

After MF Global, the Commission needs to provide market

participants with real, fully developed reforms. I look forward to

the Commission taking such action.

[FR Doc. 2012-1033 Filed 2-6-12; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: February 7, 2012