2012-30691

Federal Register, Volume 77 Issue 246 (Friday, December 21, 2012)[Federal Register Volume 77, Number 246 (Friday, December 21, 2012)]

[Rules and Regulations]

[Pages 75523-75543]

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

[FR Doc No: 2012-30691]

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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 1

RIN 3038-AD53

Adaptation of Regulations To Incorporate Swaps--Records of

Transactions

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rules.

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SUMMARY: The Dodd-Frank Wall Street Reform and Consumer Protection Act

(``Dodd-Frank Act'' or ``DFA'') established a comprehensive new

statutory framework for swaps and security-based swaps. The Dodd-Frank

Act repeals some sections of the Commodity Exchange Act (``CEA'' or

``Act''), amends others, and adds a number of new provisions. The DFA

also requires the Commodity Futures Trading Commission (``CFTC'' or

``Commission'') to promulgate a number of rules to implement the new

framework. The Commission has proposed and finalized numerous rules to

satisfy its obligations under the DFA. This final rulemaking makes

certain conforming amendments to recordkeeping provisions of

regulations 1.31 and 1.35(a) to integrate these regulations more fully

with the new framework created by the Dodd-Frank Act.\1\ This final

rulemaking requires futures commission merchants (``FCMs''), certain

introducing brokers (``IBs''), retail foreign exchange dealers

(``RFEDs'') and certain other registrants

[[Page 75524]]

that are members of designated contract markets (``DCMs'') or swap

execution facilities (``SEFs'') to record all oral communications

provided or received concerning quotes, solicitations, bids, offers,

instructions, trading, and prices, that lead to the execution of a

transaction in a commodity interest, whether communicated by telephone,

voicemail, mobile device, or other digital or electronic media, and to

keep those records for one year. This final rule also requires FCMs,

IBs, RFEDs, and all members of a DCM or SEF to record and keep all

written communications provided or received concerning quotes,

solicitations, bids, offers, instructions, trading, and prices, that

lead to the execution of a transaction in a commodity interest or

related cash or forward transactions, whether communicated by

telephone, voicemail, facsimile, instant messaging, chat rooms,

electronic mail, mobile device, or other digital or electronic media,

and to keep those written records for five years.

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\1\ All Commission regulations are in Chapter I of Title 17 of

the CFR.

DATES: Effective date: This final rule will become effective on

February 19, 2013. Compliance date: Each affected entity must comply

with the oral communications recordkeeping requirement in regulation

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1.35(a)(1) (17 CFR 1.35(a)(1)) no later than December 21, 2013.

FOR FURTHER INFORMATION CONTACT: Katherine Driscoll, Associate

Director, 202-418-5544, [email protected], Elizabeth Miller, Attorney-

Advisor, 202-418-5450, [email protected], Division of Swap Dealer and

Intermediary Oversight; Peter A. Kals, Special Counsel, 202-418-5466,

[email protected], Division of Clearing and Risk; David E. Aron, Counsel,

202-418-6621, [email protected], Office of General Counsel; Alexis Hall-

Bugg, Attorney-Advisor, 202-418-6711, [email protected], Division of

Market Oversight, Commodity Futures Trading Commission, Three Lafayette

Centre, 1151 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Introduction

A. The Dodd-Frank Act

On July 21, 2010, President Obama signed the Dodd-Frank Act into

law.\2\ Title VII of the Dodd-Frank Act \3\ (``Title VII'') amended the

CEA \4\ to establish a comprehensive new regulatory framework for swaps

and security-based swaps. The legislation was enacted, among other

reasons, 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 (``SDs''), security-based swap dealers, major swap participants

(``MSPs''), and major security-based swap participants; (2) imposing

clearing and trade execution requirements on swaps and security-based

swaps, subject to certain exceptions; (3) creating rigorous

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

rulemaking and enforcement authorities of the Commission with respect

to, among others, all registered entities and intermediaries subject to

the Commission's oversight.

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

Act, Public Law 111-203, 124 Stat. 1376 (2010). The text of the

Dodd-Frank Act is available at http://www.cftc.gov/LawRegulation/OTCDERIVATIVES/index.htm.

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

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

2010.''

\4\ 7 U.S.C. 1 et seq. (2006).

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B. Proposed Changes to Regulation 1.35(a)--Records of Transactions

On June 7, 2011, the Commission published in the Federal Register a

notice of proposed rulemaking (the ``Proposal'') to apply its

regulations, regarding the activities of intermediaries and other DCM

members to the swaps activities of those persons, in conformance with

the Dodd-Frank Act.\5\ The Proposal provided for a 60-day public

comment period, which ended on August 8, 2011. The Proposal proposed to

conform the existing recordkeeping requirements of regulation 1.35(a)

to the recordkeeping requirements for SDs and MSPs, under what was then

proposed regulation 23.202(a)(1) and (b)(1),\6\ so that FCMs, IBs,

RFEDs, and DCM and SEF members would be required to record all oral and

written communications provided or received concerning quotes,

solicitations, bids, offers, instructions, trading, and prices, that

lead to the execution of transactions in a commodity interest \7\ or

cash commodity, whether communicated by telephone, voicemail,

facsimile, instant messaging, chat rooms, electronic mail, mobile

device, or other digital or electronic media. To be consistent with

what was then proposed regulation 23.202(a) and (b), the Proposal would

have amended regulation 1.35(a) by requiring that each record be

maintained in a separate electronic file identifiable by transaction

and counterparty. On November 2, 2012, the Commission published in the

Federal Register the Final Adaptation Rule.\8\ The Final Adaptation

Rule promulgated the vast majority of the amendments that the Proposal

had introduced. In the Final Adaptation Rule, the Commission stated

that it would address in a separate release certain of the proposed

changes to regulation 1.35 (i.e., those enumerated above) and related

amendments to regulation 1.31.\9\

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\5\ Adaptation of Regulations to Incorporate Swaps, 76 FR 33066

(June 7, 2011) (``the Proposal'').

\6\ See the Proposal, 76 FR at 33067; Reporting, Recordkeeping,

and Daily Trading Records Requirements for Swap Dealers and Major

Swap Participants, 76 FR 76666, 76675 (Dec. 9, 2010) (Proposed

regulation 23.202(a)(1) would have required ``[e]ach swap dealer and

major swap participant [to] make and keep pre-execution trade

information, including, at a minimum, records of all oral and

written communications provided or received concerning quotes,

solicitations, bids, offers, instructions, trading, and prices, that

lead to the execution of a swap, whether communicated by telephone,

voicemail, facsimile, instant messaging, chat rooms, electronic

mail, mobile device or other digital or electronic media'').

\7\ The term ``commodity interest'' means: (1) any contract for

the purchase or sale of a commodity for future delivery; (2) any

contract, agreement or transaction subject to Commission regulation

under section 4c or 19 of the Act; (3) any contract, agreement or

transaction subject to Commission jurisdiction under section 2(c)(2)

of the Act; and (4) any swap as defined in the Act, by the

Commission, or jointly by the Commission and the Securities and

Exchange Commission. See Adaptation of Regulations to Incorporate

Swaps, 77 FR 66288, 66319 (Nov. 2, 2012) (``Final Adaptation Rule'')

(to be codified at 17 CFR 1.3(yy)).

\8\ Final Adaptation Rule, 77 FR 66288.

\9\ See id., 77 FR at 66288, 66296 n. 59, 66297 n. 63, and 66299

n. 72.

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In response to the amendments to regulation 1.35(a) in the

Proposal, the Commission received 35 comment letters from a variety of

institutions, including DCMs, agricultural trade associations, and

agricultural cooperatives.\10\ The Commission has

[[Page 75525]]

determined to adopt the Proposal's amendments to regulation 1.35(a),

with certain modifications, discussed below, which address the comments

the Commission received. In addition, as part of this final rulemaking,

the Commission is making certain related modifications to the record

retention periods set forth in regulation 1.31. Finally, the final

amendments to regulations 1.31 and 1.35(a) are consistent with the

Commission's final rules concerning recordkeeping requirements for SDs

and MSPs (regulations 23.202(a) and (b) and 23.203(b)(2)).\11\

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\10\ Commenters included: Agribusiness Council of Indiana;

American Cotton Shippers Association (``ACSA''); Amcot; American

Feed Industry Association (``AFIA''); American Gas Association;

American Petroleum Institute; Barclays Capital (``Barclays''); Mr.

Chris Barnard; Commodity Markets Council (``CMC''); Compliant Phones

(``Compliant''); Electric Power Supply Association (``EPSA'');

Electric Utility Trade Associations (National Rural Electric

Cooperative Association, American Public Power Association, Large

Public Power Council, and Edison Electric Institute) (``ETA'');

Encana; Falmouth Farm Supply; The Fertilizer Institute; Futures

Industry Association(``FIA''); Grain and Feed Association of

Illinois; Kansas City Board of Trade (``KCBT''); CME Group

(``CME''); Henderson & Lyman; IntercontinentalExchange, Inc.

(``ICE''); Land O'Lakes, Inc.; Minneapolis Grain Exchange

(``MGEX''); Minnesota Grain and Feed Association; National Grain and

Feed Association (``NGFA''); National Introducing Brokers

Association (``NIBA''); National Council of Farmer Cooperatives

(``NCFC''); National Futures Association (``NFA''); Natural Gas

Supply Association; Ohio Agribusiness Association; Oklahoma Grain

and Feed Association; Rocky Mountain Agribusiness Association

(``RMAA''); South Dakota Grain & Feed Association; and Working Group

of Commercial Energy Firms (``Commercial Energy Working Group'').

Comments are available in the comment file on www.cftc.gov. In the

Final Adaptation Rule, the Commission addressed those comments

unrelated to the proposed changes to regulation 1.35(a) concerning

records of oral and written communications. See Final Adaptation

Rule, 77 FR 66288.

\11\ See Swap Dealer and Major Swap Participant Recordkeeping,

Reporting, and Duties Rules; Futures Commission Merchant and

Introducing Broker Conflicts of Interest Rules; and Chief Compliance

Officer Rules for Swap Dealers, Major Swap Participants, and Futures

Commission Merchants, 77 FR 20128 (Apr. 3, 2012) (``SD and MSP

Recordkeeping Final Rule'') (adopting for SDs and MSPs reporting and

recordkeeping standards now found in 17 CFR 23.201-23.203).

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II. Oral Communications and Other Recordkeeping Changes in the

Proposal; Comments Received

Under the Proposal, FCMs, IBs, RFEDs, and DCM and SEF members \12\

would be required to record all oral and written communications

provided or received concerning quotes, solicitations, bids, offers,

instructions, trading, and prices that lead to the execution of a

transaction in a commodity interest or cash commodity, whether

communicated by telephone, voicemail, facsimile, instant messaging,

chat rooms, electronic mail, mobile device, or other digital or

electronic media. Comments to these proposed amendments to regulation

1.35(a) primarily focused on: oral recordkeeping generally; the portion

of the proposed provisions that would have required all DCM and SEF

members, including commercial end-users and non-intermediaries, to keep

records of their cash commodity transactions; and the proposed

requirement that each record be maintained in a separately identifiable

electronic file identifiable by transaction and counterparty

(``tagging'').

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\12\ A ``member'' is an individual, association, partnership,

corporation, or trust--(i) owning or holding membership in, or

admitted to membership representation on, a registered entity; or

(ii) having trading privileges on a registered entity. See Final

Adaptation Rule, 77 FR at 66316 (to be codified at 17 CFR 1.3(q)).

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A. Proposed Requirements To Record Oral Communications and Keep Them in

Separate Electronic Files Identifiable by Transaction and Counterparty

1. Comments on Oral Recordkeeping Generally

Commenters asserted that the proposed requirement for FCMs, IBs,

RFEDs, and DCM and SEF members to record oral communications that lead

to the execution of a commodity interest or cash commodity transaction

was too costly, impossible to satisfy, overly broad, and/or

unnecessary. ACSA, AFIA, Amcot, EPSA, ICE, and Land O'Lakes commented

that these proposed amendments were broad and ambiguous.\13\ AFIA, CME,

EPSA, MGEX, and the Commercial Energy Working Group argued that the

phrases ``concerning quotes, solicitations, bids'' and ``lead to the

execution of'' were vague and could encompass a great number of

communications. Amcot asserted that the overbreadth of the proposed

amendment would be burdensome for agricultural DCM members given that

there are a variety of settings, including grower meetings and on-site

visits, where a DCM member could have a discussion with an agricultural

producer that leads to a cash commodity or commodity interest

transaction. Land O'Lakes was unsure whether face-to-face conversations

would have to be recorded under the proposed requirement. ICE inquired

as to whether a general conversation about markets would be subject to

the proposed recording requirement if a transaction occurred later in

the day. AFIA stated that the risk of an incorrect interpretation would

fall on local grain producers.

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\13\ FIA made a similar argument regarding the application of

the amendment to FCMs.

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Regarding application of the proposed requirement to telephone

conversations, Land O'Lakes and MGEX each argued that a DCM member

might not know in advance of a telephone call whether that call would

lead to a transaction. MGEX believed that this fact would require a DCM

member to record all conversations, which they argued would be

impossible. Land O'Lakes asserted that complying with the proposed

requirement could involve massive amounts of recording, thereby

deterring open communication between a DCM member and one of its

agricultural producers. The Commercial Energy Working Group commented

that proposed regulation 1.35(a) was too broad in that it could require

DCM members to record communications of attorneys and other ``middle

office'' personnel, and not just the communications of traders who are

directly involved in executing a transaction. CMC argued that the

Commission has substantially underestimated the considerable costs and

limited benefits associated with the recordkeeping requirements for DCM

and SEF members. CME does not believe firms can comply with the

proposed oral recordkeeping requirements with respect to mobile

telephones because, they stated, mobile telephone recording technology

is not well developed in the United States.

Regarding whether an oral communications recordkeeping requirement

is necessary, NCFC stated that the proposed requirement to record oral

communications is not necessary to achieve the Commission's stated goal

of protecting customers from abusive sales practices. CMC asserted that

current regulation 1.35(a)'s requirement to maintain written records of

commodity interest and cash commodity transactions suffices to prevent

market abuses. Amcot stated that the Commission failed to demonstrate

the inadequacy of its existing regulations. Henderson & Lyman, NFA, and

NIBA stated that the oral recordkeeping requirement is unnecessary

because NFA already requires certain FCMs and IBs with a history of

sales practice abuses to record calls made by their associated persons.

Henderson & Lyman stated that the NFA rule and NFA's related guidance

concerning communications are sufficient and cost-effective.

NIBA commented that all IBs, or at the very least small IBs, should

be exempt from the proposed amendments to regulation 1.35(a) because

the burden on such small entities would be too great. Henderson & Lyman

similarly commented that the proposed regulation would favor large IBs

over small IBs. Neither NIBA nor Henderson & Lyman, however, offered a

definition of ``small IB'' or provided any quantitative or qualitative

thresholds. Henderson & Lyman stated that it is unnecessary to have an

oral recording requirement for IBs because most IBs solicit customers

electronically rather than over the telephone. Henderson & Lyman also

stated that the focus on IBs was misplaced since misleading

communications come from marketing firms rather than from IBs. NIBA

further stated that the proposed amendment would be ineffective in

compelling IBs to record their calls since those who refuse to do so

will find a way to circumvent the regulation.

Falmouth Farm Supply had several concerns with the proposed

[[Page 75526]]

amendment, asserting that a grain business-DCM member recording its

telephone conversations with a farmer-supplier would amount to an

invasion of privacy and that grain producers do not need the

Commission's protection. CMC and ICE stated that it would be redundant

for a DCM or SEF member to comply with proposed regulation 1.35(a)

because the DCM or SEF member will have to engage an FCM clearing agent

for each transaction, and the FCM would have to comply with the

regulation.

2. Comments on the Proposed ``Tagging'' Requirement

CME, Barclays, Henderson & Lyman, NGFA, and NIBA stated that it

would be burdensome to comply with the proposed requirement to maintain

records as separate electronic files identifiable by counterparty and

transaction.\14\ FIA commented that the ``separate electronic file

requirement'' is open-ended and, on its face, impossible to

achieve.\15\ CME stated that potentially relevant conversations could

span several days and that it would be difficult to link conversations

to transactions. Therefore, CME commented, FCMs and IBs should only be

required to record and identify conversations immediately preceding an

order. FIA stated that a customer may decide to enter an order with an

FCM at any time, even if that was not the original purpose of the call.

According to FIA, this aspect of the futures business means that an FCM

would have to record all of its telephone calls to comply with proposed

regulation 1.35(a) and this would be difficult if not impossible.

Moreover, FIA stated that compliance would be impossible because one

could argue that any conversation pertains to a particular transaction.

Like CME, Barclays stated that the tagging requirement is vague,

potentially requiring an FCM to tag every communication that could ever

lead to a transaction. Barclays stated that it would be particularly

challenging to tag a telephone call when the firm is telephoned by a

counterparty; when parties discuss a transaction that the firm did not

originally anticipate; or when multiple transactions are discussed

during a particular call. According to Barclays, there is no technology

to automatically tag communications, so the firm would have to manually

tag over 2.4 billion electronic communications it sends and receives

every year. Barclays also stated that it is not aware of any

commercially available technology that would allow entities to tag

their telephone recordings by transactions and counterparty. Other

commenters expressed similar concern regarding the reliability and

availability of technological solutions for the proposed tagging

requirement. The Commercial Energy Working Group stated that, in lieu

of an accurate and commercially available software solution, manual

identification and retrieval of oral records would require as many as

three to five analysts and one to two additional technical support

personnel to support transactions for a small or modest-sized end-user

commodity business and that the total cost to a commodity business is

likely to be in excess of $1 million annually.

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\14\ NGFA's letter was supported by the other Grain and Feed

Associations, the Agribusiness Associations, Land O' Lakes, and

NCFC.

\15\ ACSA generally supported FIA's comment letter.

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According to Barclays, an FCM should be permitted to maintain

records in any manner so long as it is able to respond to Commission

inquiries in a timely and comprehensive fashion. The Commercial Energy

Working Group commented that a firm should only have to identify

communications as pertaining to a particular transaction if the

Commission requests that information. Moreover, the Commercial Energy

Working Group stated that it is unlikely that the Commission will

request such information, so DCM members should not have a general

obligation to tag conversations.\16\ The Commercial Energy Working

Group urged the Commission to allow market participants to make their

records searchable by transaction at the time the Commission requests

the records rather than require that all records be maintained on a

transaction-by-transaction basis in real-time.

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\16\ API generally supported the Commercial Energy Working

Group's comment letter.

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MGEX sought clarification as to whether the requirement in proposed

regulation 1.35(a) to maintain ``each transaction record in a separate

electronic file identifiable by transaction and counterparty'' requires

a file to be kept for each counterparty and for each transaction or

whether it suffices to keep one transaction file that is indexed by

counterparty and transaction. MGEX also stated that it would be

duplicative for a firm to keep records of both written and oral

communications if they contained substantially the same content.

3. Commenters' Suggested Revisions to the Oral Communications

Requirement

Commenters made suggestions about how the Commission should revise

the Proposal to limit the burden. NGFA suggested that if the Commission

adopts the proposed oral recordkeeping requirement, it should give FCMs

and IBs a generous compliance timetable and flexible implementation

options, particularly for smaller firms. CME, FIA, and MGEX asserted

that firms should only be required ``reasonably'' to comply with oral

recordkeeping requirements. MGEX suggested that a DCM member should

only be required reasonably to link a conversation to an executed

transaction. Barclays highlighted that the United Kingdom Financial

Services Authority (``FSA'') adopted a reasonableness standard for

compliance with its mobile telephone conversation recording

requirement.\17\ CME stated that a reasonableness standard is necessary

because of limited technology, particularly a lack of reliable search

mechanisms. According to CME, one way a firm should be able to comply

would be by having a policy prohibiting the use of mobile telephones to

solicit or accept orders. CME commented that the Commission fails to

provide evidence that the Proposal would be less effective with such a

``reasonableness'' standard than without it. CME stated that only firm-

provided landline and mobile telephones should be covered by the rule

as that would make the proposal consistent with foreign regulatory

regimes. ETA stated that the Commission fails to justify aligning its

recordkeeping requirements with those of other countries. CMC commented

that the Proposal's reference to the fact that 80% of large U.K.

financial services firms were already recording their traders'

telephone calls prior to the FSA's enactment of its voice recordkeeping

requirement is irrelevant to the burden that the Proposal would impose

on agricultural enterprises who are DCM members trading for their own

accounts and not on behalf of customers. FIA sought confirmation that

an FCM, IB, or other DCM or SEF member can satisfy the recordkeeping

requirements under regulation 1.35(a) by relying on record retention

performed by a DCM or SEF.

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\17\ In November 2011, the FSA rule requiring taping of mobile

telephones became effective. Under the rule, a firm is required,

``to take reasonable steps to record relevant conversations, and

keep a copy of relevant electronic communications, made with, sent

from or received on equipment: (1) Provided by the firm to an

employee or contractor; or (2) the use of which by an employee or

contractor has been sanctioned or permitted by the firm.'' See

Financial Services Authority, Conduct of Business Sourcebook,

Section 11.8 Recording telephone conversations and electronic

communications (June 2012, Release 126, 11.8.2).

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[[Page 75527]]

NFA recognized that audio recordings have been very useful to the

Commission in enforcement proceedings and stated that only those firms

that choose to record calls should have to maintain their recordings.

Acknowledging that some FCMs currently record their telephone calls,

FIA commented that, to the extent they do, recording is limited to

dedicated order desks and only required to be stored for no more than a

few days or weeks. FIA and MGEX asserted that the technology available

to comply with the Proposal was ``uncertain at best'' and, therefore,

the Proposal should be considered further in the context of available

technology and then re-proposed in a separate release.

EPSA suggested that a separate rulemaking should be published to

address changes to regulation 1.35(a) to give affected parties

reasonable notice. Amcot, Henderson & Lyman, and ICE asserted that the

Commission has not considered existing state and federal wiretapping

law and privacy laws in proposing these new requirements.

B. Proposed Requirement for All Members of a DCM or SEF To Record Oral

and Written Communications Leading to the Execution of Cash Commodity

Transactions

Three DCMs joined various agricultural and energy sector trade

organizations in opposing the Commission's proposed requirement to keep

oral communications, and existing requirement to keep written

communications, regarding cash market transactions on members of a DCM

or SEF who are non-financial entities and commercial end-users, and who

do not have customers.\18\ These commenters pointed out that including

a DCM member's cash transactions would require compliance by hundreds,

if not thousands, of agricultural and energy firms, including many who

do not have customers and do not themselves enter into futures or

swaps.\19\ EPSA and the Commercial Energy Working Group stated that

many of the affected entities in the energy sector would be small

entities that likely are unaware of the Proposal. Commenters asserted

that the requirement amounted to unauthorized regulation of the cash

market, which they asserted has always been carved out of the

Commission's jurisdiction.\20\ Commenters also stated that the Dodd-

Frank Act did not intend for the Commission to subject cash commodity

transactions to new recordkeeping requirements.\21\

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\18\ Commenters included ACSA, the Agribusiness Associations,

Amcot, CMC, Falmouth Farm Supply, the Grain and Feed Associations,

Land O'Lakes, NCFC, AGA, API, EPSA, ETA, the Commercial Energy

Working Group, ICE, KCBT, TFI, and MGEX.

\19\ In related commentary, the Commercial Energy Working Group

asked the Commission to clarify that the definition of ``member'' in

the final rule covers only those people holding equity interests in

a DCM that permit such holder to submit orders directly on the DCM's

floor (or an electronic equivalent).

\20\ Commenters included Agribusiness Council of Indiana;

Agribusiness Association of Ohio; EPSA; Grain and Feed Association

of Illinois; KCBT; Land `O Lakes; Minnesota Grain and Feed

Association; NCFC; NGFA; Oklahoma Grain and Feed Association; RMAA;

and the Commercial Energy Working Group.

\21\ Commenters included Amcot; CME; EPSA; FIA; and NCFC.

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The Grain and Feed Association of Illinois, the Oklahoma Grain and

Feed Association, NCFC, and NGFA opposed the proposed revisions on the

grounds that the employees of a grain elevator that is a DCM member

would have to record calls and preserve emails with farmer producers

from whom they buy grain for cash and, thus, hundreds of employees of

grain storage and processing facilities would be significantly

burdened. As a result, these commenters stated, a grain elevator that

is a DCM member would be disadvantaged as compared to a grain elevator

that is not a DCM member as the non-member would not be burdened by the

compliance costs associated with proposed regulation 1.35(a). KCBT

asserted that this creates a discriminatory regulatory structure.

According to ICE, this outcome would deter firms from hedging

commercial risk on a DCM or SEF, thereby defeating the Dodd-Frank Act's

transparency objectives. NGFA and its affiliates argued that burdening

facilities owned by companies that are DCM members with the new rules

would create a bifurcation of the cash grain marketplace into

facilities required to comply with new recordkeeping requirements and

facilities owned and operated by companies who are not DCM members and,

therefore, not required to comply. KCBT stated that their rules (and

the rules of other DCMs) require that operators of registered delivery

warehouses be members, further stating that the regulatory

disincentives created by the application of proposed regulation 1.35(a)

to all DCM member cash transactions could affect not only DCM

expertise, but deliverable supplies and convergence. According to KCBT,

should DCM commercial members operating delivery warehouses decide to

withdraw from membership because of proposed regulation 1.35(a),

deliverable supplies would be negatively impacted and there would be

fewer deliverable supplies to foster convergence at delivery.

Amcot stated that neither it nor its members should be subject to

the proposed amendments because they do not transact with the public.

Similarly, the Commercial Energy Working Group commented that end-users

(i.e., DCM or SEF members trading for themselves) should not have to

comply with proposed regulation 1.35(a) because they do not trade for

customers and, therefore, pose minimal systemic risk. EPSA stated that

regulation 1.35(a) was never intended to burden end-users.

Several commenters objected to the Commission's regulation of

records of cash commodity transactions. KCBT stated that it did not

believe the Commission ever intended for regulation 1.35(a) to apply to

cash and cash forward transactions outside of those directly relating

to a regulated futures or swaps transaction. KCBT further stated that

it has always interpreted regulation 1.35(a) to cover only those

transactions for which a DCM member is acting as an agent for a

customer. Thus, according to KCBT, the only DCM members (who were not

otherwise FCMs or IBs) who would be required to comply would be floor

brokers (``FBs''); DCM members who trade for themselves would not be

covered. KCBT stated that it has also understood the ``related cash

transactions'' referenced by regulation 1.35(a) to refer only to those

transactions involving an exchange of a futures transaction for a

physical commodity.

The Commercial Energy Working Group asserted that, under the

proposed amendments to regulation 1.35(a), many of the entities that

transact on ICE, for example, would now be required to maintain records

pursuant to Commission rules without consideration of whether the

market users handle customer orders, which would be a departure from

the past for members of contract markets that are not FCMs, IBs, or

present on a trading floor. As a general matter, FIA argued that these

proposed amendments to regulation 1.35(a) are not necessary to

implement the Dodd-Frank Act and, therefore, they run counter to the

guiding principles set out in President Obama's January 2011 Executive

Order 13563, Improving Rulemaking and Regulatory Review.

ACSA, CMC, FIA, Henderson & Lyman, ICE, NFA, and NIBA stated that

the proposed amendments were inconsistent with the Commission's

proposed recordkeeping requirements for SDs and MSPs because they would

require FCMs, RFEDs, IBs, and members

[[Page 75528]]

of a DCM or SEF to record voice communications regardless of any other

recordkeeping requirement that captures the same information.

C. Relationship Between Regulations 1.31 and 1.35(a)

Amcot stated that it would be burdensome for its farmer-owned

cotton marketing cooperative members to retain recordings of telephone

calls for five years as the Commission proposed. CME commented that

conversations should only be retained for six months after the

execution of a transaction. FIA commented that the Commission failed to

provide a justification for requiring that a swap record be maintained

for the life of the swap plus five years. In contrast to other

commenters, Mr. Chris Barnard asserted that all records should be kept

indefinitely and scanned after two years, arguing that there is no

technological or practical reason to limit the record retention period.

Mr. Barnard specifically commented that records of voice communications

also should be kept indefinitely. To support the asserted usefulness of

such records, Mr. Barnard cited a 2009 IOSCO report stating that

telephone records could benefit enforcement investigations.\22\

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\22\ http://www.iosco.org/news/pdf/IOSCONEWS137.pdf.

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III. Final Rules

The markets subject to the jurisdiction of the Commission have

undergone a significant transformation over the last few decades, and

particularly in the last few years. Technological advances have

contributed to a tremendous growth in trading volume as well as the

number and type of market participants, including significant numbers

of retail customers that invest in the commodity markets through a

variety of means. Markets are also more interconnected than ever

before, with order flow distributed across multiple trading centers.

These changes require the Commission to adapt, and these final rules

are part of that adaptation.

The overarching purpose of the Commission's final rules is to

promote market integrity and protect customers. Requiring the recording

and retention of oral communications will serve as a disincentive for

covered entities to make fraudulent or misleading communications to

their customers over the telephone and could serve as a meaningful

deterrent against violations such as trading ahead of customer orders

by providing a record of the time that a customer's telephone order is

received. When the perspectives of the commenters are combined with the

Commission's own experiences regulating the markets subject to its

jurisdiction, a common theme emerges: The collection of and access to

searchable records, both oral and written, are indispensable tools the

Commission needs to ensure market integrity and protect customers.

Currently, many of the market participants that will be subject to the

final rules have such records by way of their business needs or other

regulatory requirements. Some commenters have urged the Commission to

rely on currently available information and not require more. While

existing information aids the Commission in discharging its regulatory

responsibility, the Commission believes current recordkeeping,

particularly in the area of oral recordkeeping, is limited, to varying

degrees, in availability, scope and effectiveness.

The final rules will significantly advance the Commission's efforts

to detect and deter abusive, disruptive, fraudulent and manipulative

acts and practices that seriously harm market integrity and customers.

In addition, the information that will be required as a result of this

rulemaking will benefit the Commission in its market analysis efforts,

such as investigating and preparing market reconstructions and

understanding causes of unusual market activity. Further, the

requirement that records be kept current and readily available

facilitates the timely pursuit of potential violations, which can be

important in seeking to freeze and recover any profits received from

illegal activity.

Notwithstanding the important policy and practical reasons for the

final rules, the Commission shares many of the commenters' concerns

regarding costs and the availability of relevant technology. Therefore,

as discussed below, the Commission is adopting alternatives to the

Proposal where doing so would achieve the Commission's objectives and

the benefits of promoting market integrity and protecting customers

albeit at lower cost. The Commission is also significantly extending

the amount of time entities have to come into compliance with the final

rule requiring the recording of oral communications. In so doing, the

entities subject to this rulemaking are afforded the same amount of

time as SDs and MSPs to come into compliance with analogous

requirements in regulations 23.202(a)(1) and (b)(1).

Regarding oral communications, in response to commenters' concerns

that the scope of the new requirement was too broad, the new

requirement to record oral communications will be limited to those oral

communications that lead to a transaction in a commodity interest. As

proposed, the oral communications recordkeeping requirement would have

applied to commodity interest and cash commodity transactions. In

response to comments asserting that the cost of implementing and

maintaining an oral communication recording system would be overly

burdensome for small entities and the commercial end-user, non-

intermediary members of a DCM or SEF, the Commission has determined to

exclude from the new requirement to record oral communications: Small

IBs\23\; the oral communications of an FB who is a member of a DCM or

SEF that do not lead to the purchase or sale for any person other than

the FB of any commodity for future delivery, security futures product,

swap, or commodity option authorized under section 4c of the Act; and

certain members of a DCM or SEF, including floor traders (``FTs''),\24\

commodity pool operators

[[Page 75529]]

(``CPOs''), SDs, MSPs,\25\ and members that are not registered or

required to be registered with the Commission in any capacity. As

proposed, the oral communications recording requirement would have

applied to FCMs, RFEDs, all IBs and all members of a DCM or SEF. These

exclusions are based on the Commission's experience that such entities

are either unlikely to or prohibited from having a customer interface

or an effect on market integrity. For example, while a Small IB takes

customer orders, they generally do not execute those orders, meaning

that they lack a direct market interface that could affect market

integrity. Further, as defined herein, a Small IB is unlikely to

generate the volume of market activity that the Commission would expect

could affect the integrity of the markets. Conversely, where an FT

could affect market integrity, they are prohibited from accepting

customer funds and are therefore excluded by the limiting principle of

customer protection.

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\23\ Final regulation 1.35(a) excludes from the oral

communications recordkeeping requirement any IB that has generated,

over the preceding three years, $5 million or less in aggregate

gross revenues from its activities as an IB (``Small IB''). All

other IBs with aggregate gross revenue exceeding $5 million will be

referred to as ``non-Small IBs.'' The Commission has previously

determined this to be an appropriate definition of a small IB. In

connection with regulation 1.71 (Conflicts of Interest Policies and

Procedures by Futures Commission Merchants and Introducing Brokers),

the Commission provided a separate regulatory standard for small

IBs, based on this definition, to lessen the compliance burden

imposed by the conflicts of interest requirements on such firms. See

SD and MSP Recordkeeping Final Rule, 77 FR at 20148. In that rule,

the Commission found that ``Section 4d(c) of the Act mandates the

establishment of `appropriate informational partitions' within FCMs

and IBs, and all such firms are bound by that statutory

requirement,'' and. It concluded that ``the size of an IB plays a

significant role in determining the appropriateness of such

partitions.'' Id. at 70149. Applying this new standard for IBs to

the instant final rulemaking, the Commission estimates that with

respect to IBs, limiting the scope of final regulation 1.35(a) to

IBs that are not small excludes more than 95% of IBs from the

regulation 1.35 oral communications recordkeeping requirement

adopted in this release. Thus, at present, the Commission expects

that no more than approximately 75 IBs will be subject to the final

oral recordkeeping requirements of regulation 1.35.

\24\ The Commission notes that certain FTs, although excluded

from the oral communications requirement in regulation 1.35(a), will

be required to record their oral communications concerning swap

transactions and their related cash and forward transactions,

pursuant to regulation 23.202(a)(1) and (b)(1). Pursuant to

regulation 23.200(i), a related cash or forward transaction means a

purchase or sale for immediate or deferred physical shipment or

delivery of an asset related to a swap where the swap and the

related cash or forward transaction are used to hedge, mitigate the

risk of, or offset one another. See SD and MSP Recordkeeping Final

Rule, 77 FR at 20202. The recently finalized definition of SD

(regulation 1.3(ggg)(iv)(H)) requires certain FTs who deal in swaps

to comply with regulation 23.202, as well as certain other

regulations in part 23, notwithstanding the fact that such FTs are

not required to register as SDs. See 17 CFR 1.3(ggg)(iv)(H), as

finalized by the Commission in Further Definition of ``Swap

Dealer,'' ``Security-Based Swap Dealer,'' ``Major Swap

Participant,'' ``Major Security-Based Swap Participant'' and

``Eligible Contract Participant,'' 77 FR 30596 (May 23, 2012).

\25\ As noted above, SDs and MSPs are subject to the oral

communications recording requirement in Part 23. See SD and MSP

Recordkeeping Final Rule, 77 FR at 20148 (to be codified at 17 CFR

23.202(a)(1) and (b)(1)). SDs and MSPs that are also registered in a

capacity covered by the oral communications recording requirement in

regulation 1.35(a) would be subject to the recording requirements in

both rules.

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While seeking to mitigate the costs of compliance for smaller

entities without compromising the Commission's objectives, the

Commission is not exempting Small IBs and other excluded participants

from the requirement to keep written records of covered information,

for example, given or received by telephone. For example, if a Small IB

receives a customer's order over the telephone, then the Small IB would

not be required to record the telephone call under the new provision in

regulation 1.35(a), but the Small IB would be required to keep a

written record of the order under both the existing requirement in

regulation 1.35(a) to keep and maintain records of ``all orders

(filled, unfilled, or cancelled)'' and the new requirement in

regulation 1.35(a) to keep records of ``instructions'' to place orders.

Therefore, although this rulemaking's definition of Small IB will

exclude most IBs from the requirement to record oral communications,

the Commission believes it can continue to promote market integrity and

protect customers because the same IBs will continue to be required to

keep written records under regulation 1.35(a). In addition, because

many of an IB's oral communications leading to a commodity interest

transaction are conducted with FCMs, those oral communications would be

recorded by the FCM.

The Commission has also considered whether FBs should be treated

similarly to IBs in drawing a distinction between large and small

entities.\26\ The Commission does not believe any similar distinction

is warranted. As Congress recognized by creating separate categories of

registrants, FBs and IBs perform different functions. While both

receive orders, an FB executes orders,\27\ and an IB transmits orders

for execution.\28\ Because FBs execute orders and can direct the manner

of the same without an intermediary, they can have a significant impact

on the integrity of the market.\29\ When an IB solicits or receives

order information from a customer through an oral communication, it

then will often communicate that information either to an FCM or FB.

Under the regulation as adopted, the FCM or FB would have to record the

oral communication with the IB. By contrast, an FB may have covered

communications with a customer who is not itself subject to a recording

requirement. The need for recording oral communications with FBs has

been independently recognized by several DCMs.\30\ DCM rules requiring

FBs to record oral communications do not make distinctions based on an

FB's size.

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\26\ Regarding FBs, KCBT stated that, ``it has always understood

1.35(a) to apply to members of DCMs * * * in order to capture and

monitor the activities of DCM members * * * dealing with customers

as agent for such transactions, namely registered FBs.''

\27\ An FB generally is defined in section 1a(22)(A) of the CEA,

7 U.S.C. 1a(22)(A), as: Any person--(--(i) who, in or surrounding

any pit, ring, post, or other place provided by a contract market

for the meeting of persons similarly engaged, shall purchase or sell

for any other person--(I) any commodity for future delivery,

security futures product, or swap; or (II) any commodity option

authorized under section 4c of the CEA; or (ii) who is registered

with the Commission as an FB.

\28\ An IB generally is defined in section 1a(31)(A) of the CEA,

7 U.S.C. 1a(31)(A), as: Any person (except an individual who elects

to be and is registered as an associated person of a futures

commission merchant) (i) who--(I) is engaged in soliciting or in

accepting orders for--(aa) the purchase or sale of any commodity for

future delivery, security futures product, or swap; (bb) any

agreement, contract, or transaction described in section

2(c)(2)(C)(i) or section 2(c)(2)(D)(i); (cc) any commodity option

authorized under section 4c; or (dd) any leverage transaction

authorized under section 19; and (II) does not accept any money,

securities, or property (or extend credit in lieu thereof) to

margin, guarantee, or secure any trades or contracts that result or

may result therefrom; or (ii) who is registered with the Commission

as an IB. See 7 U.S.C. 1a(31)(B).

\29\ See, e.g., In re DiPlacido, [2007-2009 Transfer Binder]

Comm. Fut. L. Rep. (CCH) ] 30,970 at 62,484 (CFTC Nov. 5, 2008),

summary affirmance, 364 Fed. Appx. 657 (2d Cir. 2009), cert. denied,

130 S.Ct. 1883 (2010) (records of FB's oral communications with

customer admitted as evidence in case concerning manipulation of

price of NYMEX electricity futures contracts).

\30\ For instance, CME Rule 536.G, Telephone Recordings, states:

Unless specifically exempted by the Market Regulation Department

or designated Exchange staff, all headset communications must be

voice recorded by the member or member firm authorized to use the

headset and all such recordings must be maintained for a minimum of

10 business days following the day on which the recording is made.

Members and member firms are permitted to utilize their own

recording devices, provided that the devices meet reasonable

standards with respect to quality and reliability. Alternatively,

members and member firms may utilize an Exchange administered voice

recording system for a fee.

CME Rulebook, Chapter 5 Trading Qualifications and Practices,

Rule 536 Recordkeeping Requirements for Pit, Globex, and Negotiated

Trades.

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To address commenter concerns that the proposed rule would capture

the oral communications of certain members of DCMs who currently are

registered as FBs, but are solely trading for their own accounts, i.e.,

acting as FTs.,\31\ the Commission has determined to limit an FB's

obligation to record its oral communications under regulation 1.35(a)

to those oral communications that lead to the purchase or sale for any

person other than the FB of any commodity for future delivery, security

futures product, swap, or commodity option authorized under section 4c

of the CEA. In this way, a registered FB operating as an FT (i.e., not

handling customer orders) will be treated the same as an FT under the

final rules.\32\

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\31\ An FT generally is defined in section 1a(23)(A) of the CEA,

7 U.S.C. 1a(23)(A), as: Any person--(i) who, in or surrounding any

pit, ring, post, or other place provided by a contract market for

the meeting of persons similarly engaged, purchases or sells solely

for such person's own account--(I) any commodity for future

delivery, security futures product, or swap; or (II) any commodity

option authorized under section 4c of the CEA; or (ii) who is

registered with the Commission as an FT.

\32\ See 17 CFR 3.4(a).

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In determining the applicability of the final rules to another

group of market participants that are DCM members, commodity trading

advisors (``CTAs''), the Commission has considered measures to again

tailor the oral communications recordkeeping requirements for CTAs to

mitigate the costs of compliance while achieving the twin objectives of

promoting market integrity and protecting customers. The Commission has

reduced the impact on CTAs by: Limiting the oral communications

recordkeeping requirement to commodity interest transactions (i.e., not

adopting the

[[Page 75530]]

proposal to include cash commodity transactions); reducing the record

retention period for all records of oral communications from 5 years to

1 year; permitting covered persons to contract with other Commission

registrants to retain the required records (provided that the records

retained by the contractor registrant are the same records, thus

allowing covered persons to avoid retaining the same records as other

Commission registrants); and removing the tagging requirement.\33\

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\33\ The Commission considered drawing a revenues-based

threshold for CTAs. However, given that CTAs do not have a capital

requirement it is not possible for the Commission to readily

determine the sizes of all registered CTAs and, therefore, the

Commission would not be able measure the impact that such a

threshold would have on CTAs. The Commission also considered, as an

alternative, limiting the types of oral communications that a CTA

must record in a similar manner to the way in which it has limited

the types of oral communications that an FB must record to brokering

communications. However, the Commission has determined that such a

limitation is a not a reasonable alternative to having all CTAs who

are members of a DCM or SEF record all oral communications that lead

to the execution of a commodity interest transaction. Indeed, the

limitation for FBs is appropriate for FBs, and not for other

registration categories, given the current regulatory regime for FBs

and FTs discussed above.

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The Commission understands that currently available technology for

recording oral communications may not be immediately accessible or may

involve a material cost outlay for an affected entity. However, the

Commission also anticipates that as the availability of this technology

increases over time, the costs to use such technology will decline

accordingly. Accordingly, to further conform regulation 1.35(a) with

the final recordkeeping rule for SDs and MSPs,\34\ and in response to

commenter request for a flexible compliance timetable, the Commission

is adopting a [November 28, 2013] compliance date and regulation

1.35(a)(4)(i) pursuant to which the Commission may, in its discretion,

establish an alternative compliance schedule for the requirement to

record oral communications under regulation 1.35(a)(1). Under new

regulation 1.35(a)(4)(i), compliance with the requirement to record

oral communications must be found to be technologically or economically

impracticable for an affected entity that seeks, in good faith, to

comply with the requirement. Pursuant to new regulation

1.35(a)(4)(iii), the Commission delegates to the Director of the

Division of Swap Dealer and Intermediary Oversight the authority to

exercise the Commission's discretion under regulation 1.35(a)(4)(i).

The purpose of new regulation 1.35(a)(4) is to facilitate the ability

of the Commission to provide a technologically practicable compliance

schedule for an affected entity that seeks to comply in good faith with

the oral communications recordkeeping requirements of regulation

1.35(a)(1). In order to obtain relief under new regulation 1.35(a)(4),

an affected entity must submit a request to the Commission. An affected

entity submitting a request for relief must specify the basis in fact

supporting its claim that compliance with the oral communications

recordkeeping requirement under regulation 1.35(a)(1) would be

technologically or economically impracticable. Such a request may

include a recitation of the specific costs and technical obstacles

particular to the entity seeking relief and the efforts the entity

intends to make in order to ensure compliance according to an

alternative compliance schedule. Relief granted under regulation

1.35(a)(4) shall not cause an affected entity to be out of compliance

or deemed in violation of any recordkeeping requirements. Such requests

for an alternative compliance schedule shall be acted upon within 30

days from the time such a request is received. If not acted upon within

the 30-day period, such request will be deemed approved.

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\34\ See 17 CFR 23.206, as adopted by the Commission in SD and

MSP Recordkeeping Final Rule.

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Regarding comments that the proposed amendments to regulation

1.35(a) were inconsistent with the Commission's proposed recordkeeping

requirements for SDs and MSPs because they would require FCMs, RFEDs,

IBs, and members of a DCM or SEF to record voice communications

regardless of any other recordkeeping requirement that captures the

same information, the Commission addressed these comments in the final

recordkeeping rules for SDs and MSPs, clarifying that, to the extent

pre-execution trade information does not include information

communicated by telephone, an SD or MSP is under no obligation to

create recordings of its telephone conversations. If, however, any of

this pre-execution trade information is communicated by telephone, the

SD or MSP must record such communications.\35\ This clarification is

consistent with the requirements under the revision to regulation 1.35

requiring that all oral communications be recorded regardless of

whether an audit trail can be established with other types of records.

In response to commenter inquiry about whether face-to-face

communications would have to be recorded under the final rule, the

Commission does not intend for the final rule to require the recording

of face-to-face conversations that do not occur over electronic,

digital or other media.

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\35\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20130.

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2. Written Communications

Regarding written communications, the Commission has decided to

adopt the proposed amendment to regulation 1.35(a) to clarify that the

existing requirement to keep written records applies to electronic

written communications such as emails and instant messages, as

proposed. The Commission considered comments asserting that: The

requirement to keep ``electronic communications'' should not extend to

members of a DCM or SEF that do not handle customer orders; regulation

1.35(a) has never required DCM members to keep records of their

electronic communications relating to their cash commodity

transactions; and storing records of electronic communications would be

overly burdensome for these members. In response, the Commission notes

that the record retention requirements of existing regulation 1.35, as

confirmed by the Commission's Division of Market Oversight in 2009,

include all electronic forms of communication (emails, instant

messages, and any other form of communication created or transmitted

electronically).\36\ Thus, contrary to commenter assertions, the

recordkeeping obligations of regulation 1.35 currently require that all

DCM members keep electronic

[[Page 75531]]

communications. Therefore, the relevant portion of the proposed new

language (now being adopted by the Commission) ``all * * * written

communications * * * whether communicated by * * * instant messaging,

chat rooms, electronic email, mobile device, or other digital or

electronic media'' does not impose any new requirements on DCM members.

Instead, the new language clarifies the existing requirement for DCM

members to maintain electronic communications by enumerating the forms

of communications that the Commission intends to be covered by the

rule. In addition, as explained above, the final language relating to

written communications is consistent with the final recordkeeping rule

for SDs and MSPs.\37\

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\36\ See U.S. Commodity Futures Trading Commission, Division of

Market Oversight, Advisory for Futures Commission Merchants,

Introducing Brokers, and Members of a Contract Market over

Compliance with Recordkeeping Requirements, Feb. 5, 2009, (http://www.cftc.gov/idc/groups/public/@industryoversight/documents/file/recordkeepingdmoadvisory0209.pdf) (footnotes omitted):

The Division of Market Oversight (``Division'') has become aware

that there is an industry misunderstanding of the record retention

requirements of Regulations 1.35 and 1.31 as it relates to

electronically conveyed records. The Division is issuing this

Advisory to address any industry misunderstanding of the

Commission's recordkeeping requirements applicable to futures

commission merchants (``FCMs''), introducing brokers (``IBs''), and

members of a designated contract market (``members''). With the

increased reliance in the futures industry on electronic media and

the use of personal electronic devices and communications technology

to facilitate the execution of transactions for both open outcry and

electronic trading, the Division is issuing this Advisory to correct

any misunderstandings and to make certain that the individuals and

entities subject to the Commission's recordkeeping requirements

maintain all electronic forms of communications, including email,

instant messages, and any other form of communication created or

transmitted electronically for all trading.

\37\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20202-03

(17 CFR 23.202(a)(1) and (b)(1)).

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The Commission also has decided to change the proposed language in

regulation 1.35(a) which would have required an entity to keep records

of ``all transactions related to its business of dealing in commodity

interests and cash commodities'' to ``all transactions related to its

business of dealing in commodity interests \38\ and related cash and

forward transactions.'' This is different than existing regulation

1.35, which states ``commodity futures, retail forex transactions,

commodity options and cash commodities (including currencies).'' \39\

The final rule defines ``related cash or forward transaction'' as a

purchase or sale for immediate or deferred physical shipment or

delivery of an asset related to a commodity interest where the

commodity interest transaction and the related cash or forward

transaction are used to hedge, mitigate the risk of, or offset one

another.\40\ Because a forward is a type of cash transaction already

covered by existing regulation 1.35, amending regulation 1.35 to apply

to related forward transactions does not constitute an expansion of the

scope of existing regulation 1.35.\41\

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\38\ ``Commodity interest'' includes commodity futures, retail

forex, commodity options, and swaps. See Final Adaptation Rule, 77

FR at 66319 (to be codified at 17 CFR 1.3(yy)).

\39\ 17 CFR 1.35(a). Regulation 1.35(a) has included

transactions in ``cash commodities'' since as early as 1964:

Each futures commission merchant and each member of a contract

market shall keep full, complete, and systematic records, together

with all pertinent data and memoranda, of all transactions relating

to his business of dealing in commodity futures and cash commodities

* * *

17 CFR 1.35(a) (1964).

\40\ This definition of ``related cash or forward transaction''

mirrors the definition of the same term as it applies to swap

transactions for purposes of certain of an SD's or MSP's

recordkeeping obligations under Part 23 of the Commission's

regulations. See SD and MSP Recordkeeping Final Rule, 77 FR at

20202.

\41\ The Commission's glossary includes this definition of

``forward contract'':

A cash transaction common in many industries, including

commodity merchandising, in which a commercial buyer and seller

agree upon delivery of a specified quality and quantity of goods at

a specified future date. Terms may be more ``personalized'' than is

the case with standardized futures contracts (i.e., delivery time

and amount are as determined between seller and buyer). A price may

be agreed upon in advance, or there may be agreement that the price

will be determined at the time of delivery.

See CFTC Glossary, A Guide to the Language of the Futures

Industry, at http://www.cftc.gov/ConsumerProtection/EducationCenter/CFTCGlossary/glossary_f.html.

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To reflect these changes, the Commission also is changing the

proposed revision to the title of regulation 1.35 from ``Records of

Commodity Interest and Cash Commodity Transactions'' to ``Records of

Commodity Interest and Related Cash or Forward Transactions.''

In response to comments that the requirement to keep transaction

records in separate files identifiable by transaction and counterparty

is overbroad, overly burdensome, costly, and/or impossible to achieve,

the Commission is modifying the Proposal to remove the requirement that

each transaction be maintained as a separate electronic file. Instead,

the final rule will require that such records be kept in a form and

manner identifiable and searchable by transaction. This should be less

burdensome than the Proposal because it will allow those required to

comply to maintain searchable databases of the required records without

the added cost and time needed to compile the required records into

individual electronic files. It also is consistent with the final

recordkeeping rule for SDs and MSPs under regulation 23.202.\42\ As the

Commission noted in the final release for that rulemaking, regulation

23.202 does not require the raw data to be tagged with transaction and

counterparty identifiers so long as the recordkeeper can readily access

and identify records pertaining to a transaction or counterparty by

running a search of the raw data.\43\ Covered entities will be able to

comply with this obligation by using any of a number of different

solutions available, including commercially available products capable

of conducting speech analytics on recordings from both landlines and

mobile calls.

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\42\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20130.

\43\ Id.

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FIA requested guidance on whether an FCM, IB, or other DCM or SEF

member can satisfy the recordkeeping requirements under regulation

1.35(a) by relying on record retention performed by a DCM or SEF,\44\

and other commenters similarly requested guidance on whether a covered

participant can rely on another Commission registrant's records to

satisfy its recordkeeping obligations. While complying with the final

rule is the responsibility of the covered participant and the covered

participant will be liable for failure to comply, depending on the type

of record and arrangements made for access, covered persons may

reasonably rely on a DCM, SEF or other Commission registrant to

maintain certain records on their behalf. For example, a member of a

DCM or SEF can rely on electronic order routing or order execution

systems of FCMs, DCMs, or SEFs to record the audit trail information it

enters into the system in accordance with Commission requirements, if

the covered person arranges to get access to such records in order to

satisfy requirements under the regulation. Reliance on another person,

however, will not relieve a covered person of responsibility for

compliance with the regulation. Reliance on a third party is only

appropriate where the records maintained by the third party duplicate

the information required to be kept by the regulation. For example, if

an FCM records its telephone calls with a covered IB, the IB need not

separately record the same calls if the IB and FCM agree that the FCM

will maintain the record and provide access to the IB. By contrast, if

a covered IB receives a customer order by telephone and then calls it

into the FCM, the covered IB must record its telephone call with the

customer, while the FCM records the call between the IB and FCM. For

other types of records, like instant messages and emails, it is

unlikely that covered persons will be able to rely on recordkeeping by

a third party because the third party recipient will not have a

complete record of the distribution of the message by the sender.

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\44\ FIA stated:

We interpret the Commission's statement to mean that, to the

extent a DCM or SEF records the relevant conversations of orders

transmitted for execution by telephone, a Commission registrant that

transmits such orders may rely on the DCM or SEF and is not required

to record such conversations and maintain such records separately.

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The Commission has considered commenter requests to adopt best

efforts approach to compliance, and require only the recording of

conversations on firm-provided mobile telephones, not personal devices.

The Commission declines these requests and reiterates that any

conversation the content of

[[Page 75532]]

which is described under the regulation must be recorded, regardless of

whether it occurs on a firm-provided or personal phone.\45\ It would be

contrary to the objectives of ensuring market integrity and customer

protection to allow circumvention of the rule simply by communicating

on a personal device lacking recording capability. To be clear, covered

persons must ensure that covered communications do not occur on

personal phones that lack recording capability. And while the

Commission is not adopting any explicit safe harbors, as a matter of

course, the Commission considers good faith compliance with policies

and procedures reasonably designed to comply with the oral

communications recording rule as a mitigating factor when exercising

its discretion in enforcement actions for violation of the rule.

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\45\ Significant technological advancements in recent years,

particularly with respect to the cost of capturing and retaining

copies of electronic material, including telephone communications,

have made the prospect of establishing recordkeeping requirements

for digital and electronic communications more economically feasible

and systemically prudent. Evidence of these trends was examined in

March 2008 by the FSA, which studied the issue of mandating the

recording and retention of voice conversations and electronic

communications. The FSA issued a Policy Statement detailing its

findings and ultimately implemented rules relating to the recording

and retention of such communications, including a recent

determination that all financial service firms will be required to

record any relevant communication by employees on their work cell

phones. Similar rules that mandate recording of certain voice and/or

telephone conversations have been promulgated by the Hong Kong

Securities and Futures Commission and by the Autorit[eacute] des

March[eacute]s Financiers in France and have been recommended by the

International Organization of Securities Commissions (IOSCO). FSA,

``Policy Statement: Telephone Recording: recording of voice

conversations and electronic communications'' (March 2008).

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Regarding comments about the existing NFA requirement that NFA

member firms with more than a certain percentage of disciplined

associated persons must record all conversations that they have with

existing and potential customers for two years, the Commission believes

that the NFA rule has been effective at protecting the markets and the

public. However, as discussed throughout, the Commission does not view

its final recording requirement solely as a customer protection rule.

The amendments adopted by this release are also a means to protect the

integrity of the markets by aiding the Commission in detecting and

deterring market abuse, including manipulation and false reporting.\46\

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\46\ Recorded telephone conversations have been used in a number

of the Commission's enforcement cases as evidence of market abuse.

See, e.g., DiPlacido v. CFTC, 364 Fed.Appx. 657 (2d Cir. 2009); In

re Barclays PLC, CFTC Docket No. 12-25 (June 27, 2012); CFTC v.

Optiver US LLC, 2012 WL 1632613 (S.D.N.Y. Apr. 19, 2012).

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The Commission disagrees with commenters who stated that compliance

with the new recording requirement would be illegal in certain

jurisdictions.\47\ Federal law does not prohibit a person from

recording a telephone call where the person recording the call is a

party to the call or one of the parties to the call has given prior

consent to being recorded.\48\ While state laws differ regarding the

ability to record customer telephone conversations, the difference

exists in the type of consent required to be given before recording can

occur. For example, some states require the consent of one party to the

call and others require the consent of all parties to the call.\49\

Consent can be explicit or implied. A customer will have provided

consent if, after being notified that the call is being recorded, he or

she continues with the call.\50\ Therefore, a covered participant will

in all circumstances be able to comply with this final recording rule

without violating any other state or federal laws by informing the

other parties to the call that the call is being recorded.\51\

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\47\ Commenters included Henderson & Lyman; Amcot; and ICE.

\48\ See 18 U.S.C. 2511(2)(d) (Interception and disclosure of

wire, oral, or electronic communications prohibited) (``It shall not

be unlawful under this chapter for a person not acting under color

of law to intercept a wire, oral, or electronic communication where

such person is a party to the communication or where one of the

parties to the communication has given prior consent to such

interception unless such communication is intercepted for the

purpose of committing any criminal or tortious act in violation of

the Constitution or laws of the United States or of any State.'')

\49\ For example, under New York state law, only one of the

parties to the conversation must consent. See NY CLS Penal Sec.

250.00. Under California and Illinois state laws, all parties to the

conversation must consent to the recording. See Cal. Pen. Code Sec.

632; 720 ILCS 5/14-1.

\50\ See, e.g., Griggs-Ryan v. Smith, 904 F.2d 112,118 (1st Cir.

1990) (call recipient, previously warned that all incoming calls

were being recorded, impliedly consented to interception); Kearney

v. Salomon Smith Barney, Inc., 45 Cal.Rptr.3d 730, 749 (Cal. 2006)

(business that adequately advises all parties to a telephone call,

at the outset of the conversation, of its intent to record the call

would not violate the statute prohibiting the recording of telephone

conversations without the consent of all parties).

\51\ Moreover, if a state law were to conflict with the

recording requirement in regulation 1.35(a), such a law would be

preempted by regulation 1.35(a).

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Commenters also focused on the relationship between the proposed

changes to regulation 1.35(a) and the existing record retention

obligations of regulation 1.31 (Books and records; keeping and

inspection). Under regulation 1.31, all books and records required to

be kept under the Act or by the Commission's regulations must be kept

for five years from the date thereof and be readily accessible during

the first two years of the five-year period. Given the proposed

amendment to regulation 1.35(a) to include a requirement to record all

oral communications leading to the execution of a commodity interest or

cash commodity transaction and that all such recordings be retained

pursuant to regulation 1.31, records of oral communications kept

pursuant to proposed regulation 1.35(a) would have had to be kept for

five years.\52\ Concerning the relationship between regulations 1.31

and 1.35(a), the Commission has determined to adopt a retention period

of one year for all records of oral communications that lead to the

execution of a transaction in a commodity interest. This modification

responds to comments stating that the proposed retention period of five

years for records of oral communications was too long. This also is

consistent with the final provision for SD and MSP oral communications

under new regulation 23.203(b)(2).\53\ In addition, the Commission

believes that the one-year retention period for records of oral

communications will enable it to adequately execute its enforcement

responsibilities under the Act and these regulations, while minimizing

the storage costs imposed on affected entities.

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\52\ See 17 CFR 1.31

\53\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20204

(Apr. 3, 2012) (``Provided, however, that records of oral

communications communicated by telephone, voicemail, mobile device,

or other digital or electronic media pursuant to Sec. 23.202(a)(1)

and (b)(1) shall be kept for a period of one year.'').

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In specific response to Amcot's concern that the five-year

retention period for oral communications would have been too burdensome

to its farming cooperative members, the Commission notes that, due to

the adopted revisions to regulation 1.35(a), discussed above, the

requirement to record oral communications likely will not apply to a

significant portion, if any, of Amcot's members.\54\ With respect to

Encana's request for clarification concerning the applicability of

regulation 1.31 to

[[Page 75533]]

commercial end-users, regulation 1.31 applies to all records required

to be kept by the Act or the Commission's regulations, such as records

required to be kept under regulations 1.35, 18.05 and 23.202.

Therefore, Encana's request is better addressed in particular response

to those other recordkeeping requirements than in a discussion of how

those records should be kept. In response to CME's comment that

although the Commission suggests that the retention period for swaps

applies only to SDs and MSPs, as addressed in proposed regulation

23.203(b), the proposed amendment to regulation 1.31 is ambiguous in

that it could be read to apply to all entities, the Commission

clarifies that the final provision in regulation 1.31 regarding the

retention period for records of swap transactions is triggered by the

type of record and not the entity that is required to keep the record.

Therefore, although regulation 23.203(b) only applies to SDs and MSPs

with regard to their swap transactions, the final corresponding

provision in regulation 1.31 applies to anyone who is required by the

Act or by Commission regulations to keep records of swap or related

cash or forward transactions.

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\54\ The obligation to record oral communications under final

regulation 1.35(a)(1) will not apply to (i) oral communications that

lead solely to the execution of a related cash or forward

transaction; (ii) oral communications by an FB that do not lead to

the purchase or sale for any other person of any commodity for

future delivery, security futures product, swap, or commodity option

authorized under section 4c of the Commodity Exchange Act; (iii) an

IB that has generated over the preceding three years $5 million or

less in aggregate gross revenues from its activities as an IB; (iv)

an FT; (v) a CPO; (vi) an SD; (vii) an MSP; or (viii) a DCM or SEF

member that is not registered or required to be registered with the

Commission in any capacity.

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IV. Administrative Compliance

A. Paperwork Reduction Act

Regulation 1.35(a) is being amended to provide that certain

Commission registrants be required to record and keep records of their

oral communications that lead to the execution of a commodity interest

transaction and their written communications that lead to the execution

of a commodity interest or related cash or forward transaction, similar

to the requirement that SDs and MSPs keep records of their oral and

written communications that lead to the execution of swaps and related

cash or forward transactions. Only the oral communications

recordkeeping amendments impose new information recordkeeping

requirements. These new requirements constitute a collection of

information within the meaning of the Paperwork Reduction Act of 1995

(``PRA'').\55\ 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 has been approved by the Office of Management and Budget

(``OMB'') and displays a currently valid control number.\56\ This

rulemaking contains new collections of information, which amend the

existing collection of information set forth in the ``Adaptation of

Regulations to Incorporate Swaps'' final rule,\57\ OMB Control Number

3038-0090, to add a new oral communication recordkeeping requirement

that was not made part of the earlier Final Adaptation Rule. The

Commission has submitted the Proposal containing the oral communication

recordkeeping requirements that have been separately addressed in this

release,\58\ 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.

Responses to these information collections will be mandatory.

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\55\ 44 U.S.C. 3501 et seq.

\56\ Id.

\57\ On November 2, 2012, the Commission published in the

Federal Register the Final Adaptation Rule. The Final Adaptation

Rule promulgated the vast majority of the amendments that the

Proposal had introduced. However, in the Final Adaptation Rule, the

Commission stated that it would address in a separate release

certain of the proposed changes to regulation 1.35 (i.e., the oral

communication recordkeeping requirements).

\58\ See 76 FR 33066, June 7, 2011.

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With respect to all of the Commission's collections, the Commission

will protect proprietary information according to the Freedom of

Information Act and 17 CFR part 145, ``Commission Records and

Information.'' In addition, section 8(a)(1) of the Act strictly

prohibits the Commission, unless specifically authorized by the Act,

from making public ``data and information that would separately

disclose the business transactions or market positions of any person

and trade secrets or names of customers.'' The Commission also is

required to protect certain information contained in a government

system of records according to the Privacy Act of 1974, 5 U.S.C. 552a.

1. Information To Be Provided by Reporting Entities/Persons

a. Amendments to Regulation 1.35 (Records of Commodity Interest and

Related Cash or Forward Transactions)

i. Obligation To Develop and Maintain Recordkeeping Policies and

Controls

The final amendments to regulation 1.35(a) that require

recordkeeping related to oral communications will require that each

FCM, non-Small IB, RFED, and DCM or SEF member that is registered or

required to be registered with the Commission in any capacity, except

if registered as an FT, CPO, SD, or MSP, retain all oral communications

provided or received concerning quotes, solicitations, bids, offers,

instructions, trading, and prices, that lead to the execution of a

commodity interest transaction, whether communicated by telephone,

voicemail, facsimile, instant messaging, chat rooms, electronic mail,

mobile device or other digital or electronic media. The final

amendments to regulation 1.35(a) will also apply to FBs who are members

of a DCM or SEF. However, FBs will only be required to record oral

communications that lead to the purchase or sale for any person other

than the FB of any commodity for future delivery, security futures

product, swap, or commodity option authorized under section 4c of the

Act.

In the Proposal, the Commission anticipated that the aforementioned

registrants may incur certain one-time start-up costs in connection

with establishing a system to record oral communications. The

Commission estimated that the cost of procuring systems to record these

oral communications would be $55,000 for an average large entity that

does not already have such systems in place, and estimated procurement

costs of $10,000 for each small firm that does not already have such

systems in place. Following publication of the Proposal, the Commission

researched these costs further. As discussed below in the Cost-Benefit

Considerations, the Commission now estimates that the cost for

establishing a system to record oral communications on mobile phones

using a cloud-based solution would be $90 per phone line and that the

cost for establishing a system to record oral communications on a

landline using a cloud-based solution would be $50 per phone line. The

Commission estimates further that a small entity required to comply

will have 10 phone lines and that a large entity required to comply

will have 1,000 phone lines. Thus, to figure out the initial cost of

establishing a system for recording oral communications, an entity will

have to multiply the number of phone lines by the cost per line ($50

per landline and $90 per mobile phone). The Commission estimates each

entity to have 50% landlines and 50% mobile phone lines. Therefore, the

initial cost for a small firm (10 phone lines) to establish a system

for recording oral communications would be (5 x $50) + (5 x $90) or

$700, and the initial cost for a large firm (1,000 phone lines) would

be (500 x $50) + (500 x $90) or $70,000. For purposes of the PRA, the

Commission has chosen to use an average initial cost of $35,000.

Also in the Proposal, the Commission estimated the burden hours

associated with these start-up costs to be 135 hours for any entity

that does not already have a system in place. According to research

referenced in the previous paragraph, the Commission now estimates that

an entity will not have to spend any time

[[Page 75534]]

setting up a cloud-based solution for recording oral communications on

a mobile phone or landline because the entity will merely have to

contract for services from an outside vendor. However, an entity will

spend an estimated range of 1 to 10 hours arranging the services of an

outside vendor. If the entity chooses to negotiate the vendor's

contract, the burden hours will be towards the higher end of the range.

The Commission also estimated in the Proposal that one employee

from each affected entity would have to devote one hour per trading day

to ensure the operation of the system to record oral communications.

Pursuant to the research referred to above, the Commission estimates

that employees of those entities who will be required to record oral

communications will not have to spend any time each day to ensure the

operation of the system because the Commission expects that outside

vendors would maintain the system.

ii. Comments Received

As indicated earlier in this rule, in the Final Adaptation Rule,

the Commission stated that it would address in a separate release

certain of the proposed changes to regulation 1.35 and related

amendments to regulation 1.31.\59\ In response to the amendments to

regulation 1.35(a) in the Proposal, the Commission received 35 comment

letters from a variety of institutions, including DCMs, agricultural

trade associations, and agricultural cooperatives.\60\ The Commission

has determined to adopt the Proposal's amendments to regulation

1.35(a), with certain modifications, discussed above, in order to

address the comments the Commission received. In addition, as part of

this final rulemaking, the Commission is making certain related

modifications to the record retention periods set forth in regulation

1.31. The final rules provide for a retention period of one year for

all records of oral communications that lead to the execution of a

transaction in a commodity interest. This modification responds to

comments stating that the proposed retention period of five years for

records of oral communications was too long. This also is consistent

with the final provision for SD and MSP oral communications under new

regulation 23.203(b)(2).\61\ Moreover, in light of comments stating,

among other things, that it would be overly burdensome for Small IBs

and DCM members that do not have customers to comply with the oral

communications recordkeeping requirement, the Commission decided to

exclude these market participants from the oral recordkeeping

amendments to regulation 1.35(a).

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\59\ See supra section I.B.

\60\ Comments are available in the comment file on www.cftc.gov.

\61\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20204

(``Provided, however, that records of oral communications

communicated by telephone, voicemail, mobile device, or other

digital or electronic media pursuant to Sec. 23.202(a)(1) and

(b)(1) shall be kept for a period of one year.'').

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B. Regulatory Flexibility Act

The Regulatory Flexibility Act (``RFA'') requires that agencies

consider whether the rules they propose will have a significant

economic impact on a substantial number of small entities \62\ and, if

so, provide a regulatory flexibility analysis respecting the

impact.\63\ The Commission is adopting a substantive rule change to

regulation 1.35(a). This substantive change would affect FCMs, certain

IBs,\64\ RFEDs, and any member of a DCM or SEF who is registered or

required to be registered with the Commission in any capacity other

than as an FT, CPO, SD, or MSP by requiring them to keep records of all

oral communications leading to the execution of a commodity interest

transaction.

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\62\ The Small Business Administration (SBA) identifies (by

North American Industry Classification System codes) a small

business size standard of $7 million or less in annual receipts for

Subsector 523--Securities, Commodity Contracts, and Other Financial

Investments and Related Activities. 13 CFR Ch. 1, Sec. 121.201.

\63\ 5 U.S.C. 601 et seq.

\64\ See note 2323, supra, for discussion of definition of Small

IB.

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1. FCMs and RFEDs

The Commission has previously determined that registered FCMs and

RFEDs are not small entities for purposes of the RFA.\65\ Accordingly,

the Chairman, on behalf of the Commission, hereby certifies pursuant to

5 U.S.C. 605(b) that the final rules will not have a significant

economic impact on a substantial number of small entities with respect

to these entities.

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\65\ See Policy Statement and Establishment of Definitions of

``Small Entities'' for Purposes of the Regulatory Flexibility Act,

47 FR 18618, 18619 (Apr. 30, 1982) (DCMs, FCMs, and large traders)

(``RFA Small Entities Definitions''); Opting Out of Segregation, 66

FR 20740, 20743 (Apr. 25, 2001) (ECPs); Regulation of Off-Exchange

Retail Foreign Exchange Transactions and Intermediaries, 75 FR

55410, 55416 (Sept. 19, 2010) (RFEDs) (``Retail Forex Final

Rules''); and Position Limits for Futures and Swaps; Final Rule and

Interim Final Rule, 76 FR 71626, 71680 (Nov. 18, 2011) (SEFs).

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2. IBs

Regulation 1.35(a) may have a significant economic impact on IBs

with annual receipts between $5 million and $7 million. The Commission

provided an initial regulatory flexibility analysis in its proposed

rulemaking for all IBs, regardless of their size, as the proposed

rulemaking did not exclude any IBs from the application of the

requirement to keep records of all oral communications.\66\

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\66\ See the Proposal, 76 FR at 33079. To the extent that small

IBs were affected by the proposed rules, the Commission conducted an

initial regulatory flexibility analysis. These final rules exclude

Small IBs, as defined above. The final rules have therefore

significantly reduced the number of IBs affected by regulation

1.35(a). However, to the extent that certain small IBs, for purposes

of RFA, may be affected by these rules, the Commission is conducting

a final regulatory flexibility analysis.

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As discussed above, this final rule will involve substantive

changes to regulation 1.35(a), by requiring, among others, non-Small

IBs to record all oral communications that lead to the execution of a

commodity interest transaction. As indicated above, the Commission

provided an initial regulatory flexibility analysis for IBs in the

Proposal, as required by 5 U.S.C. 603, because the oral recordkeeping

requirement under regulation 1.35(a), as proposed, may have had a

significant economic impact on a significant number of small IBs.\67\

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\67\ See the Proposal, 76 FR at 33079-80.

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The Commission has never previously determined that IBs, as a

registrant category, are not ``small entities'' for the purposes of the

RFA. Instead, historically, the Commission has evaluated within the

context of a particular regulatory proposal whether all or some

affected IBs would be considered to be small entities and, if they are

considered small entities, the economic impact on them of the

particular regulation. Accordingly, the Commission offers, pursuant to

5 U.S.C. 604, the following final regulatory flexibility analysis.

a. A Statement of the Need for, and Objectives of, the Rule

The primary objective of final regulation 1.35(a) is to increase

market integrity by requiring IBs with greater than $5 million in total

aggregate gross revenues over the preceding three years to keep records

of all oral communications leading to the execution of a commodity

interest transaction. This rule is necessary for several reasons.

First, it will protect the integrity of the market as a whole by aiding

the Commission in detecting and deterring market abuse, including

manipulation and false reporting. Additionally, it will make

enforcement investigations more efficient by preserving critical

evidence that otherwise may be lost to memory lapses

[[Page 75535]]

and inconsistent recollections. This, in turn, is expected to increase

the success of enforcement actions, which will benefit customers,

regulated entities, and the markets as a whole.\68\ Moreover, it also

will protect customers from abusive sales practices, protect

registrants from the risks associated with transactional disputes, and

allow registrants to follow-up more effectively on customer complaints

of abuses by their associated persons. Finally, final regulation

1.35(a) provides regulatory parity of futures and swaps markets because

the requirements of final regulation 1.35(a) are consistent with

recently finalized regulations requiring SDs and MSPs to keep records

of all oral communications leading to the execution of a swap

transaction or a related cash or forward transaction.\69\

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\68\ In promulgating its own telephone recording rule, the

Financial Services Authority issued guidance stating the following

benefits: ``(i) Recorded communication may increase the probability

of successful enforcement; (ii) this reduces the expected value to

be gained from committing market abuse; and (iii) this, in

principle, leads to increased market confidence and greater price

efficiency.'' See Financial Services Authority, ``Policy Statement:

Telephone Recording: Recording of voice conversations and electronic

communications'' (Mar. 2008).

\69\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20203-04

(to be codified at 17 CFR 23.202(a)(1) and (b)(1)).

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b. A Statement of the Significant Issues Raised by the Public Comments

in Response to the Initial Regulatory Flexibility Analysis, a Statement

of the Assessment of the Agency of Such Issues, and a Statement of Any

Changes Made in the Proposed Rule as a Result of Such Comments

i. Significant Issues Raised by the Public Comments in Response to the

Initial Regulatory Flexibility Analysis

Comments on the proposed amendments to regulation 1.35(a) primarily

focused on the implications of the proposed oral recordkeeping and

tagging requirements and, in particular, on the portion of the Proposal

requiring all DCM and SEF members, including commercial end-users and

non-intermediaries, to keep records of their cash commodity

transactions. One theme of the comments was that the proposed oral

communications recordkeeping and tagging requirements were overly

burdensome.\70\ Commenters were also concerned that the proposed

separate electronic file requirement was open-ended, seemingly

impossible to achieve,\71\ and overly burdensome. Commenters also

explained that it could be difficult to link conversations occurring

over several days,\72\ and could require the recording of all

conversations \73\ because a call might begin unrelated to a covered

transaction but eventually lead to a covered transaction. Commenters

sought a reasonableness standard regarding oral recordkeeping and a

limitation to exclude oral communications on mobile telephones and

argued that the new oral communications recordkeeping requirement would

be illegal in certain jurisdictions. Commenters also requested that the

proposal to record and store oral communications should be reviewed in

the context of available technology.

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\70\ See, e.g., comments from Amcot (overbreadthover breadth

would be burdensome for agricultural DCM members) and NIBA (at the

very least, small IBs should be exempt from the proposed amendments

to 1.35(a) because the burden on such small entities would be too

great).

\71\ See comment from FIA.

\72\ See comment from CME.

\73\ See id.

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ii. Agency Assessment of Significant Issues Raised by the Public

Comments in Response to the Initial Regulatory Flexibility Analysis

The Commission carefully considered the comments, determined that a

number of concerns and requested alternatives had merit and, as a

result, made a number of adjustments in response. In response to

commenters' concerns that the proposed amendments were overly

burdensome to non-intermediaries' cash agricultural and energy

transactions, the Commission has limited not only the oral

recordkeeping requirements of regulation 1.35(a) to commodity interest

transactions, but also the existing written recordkeeping requirements

therein to commodity interest and related cash and forward

transactions.

Some commenters expressed concerns that the proposed revisions to

regulation 1.35(a) would be unduly burdensome for small entities and

DCM and SEF members who are commercial end-users and non-

intermediaries. In response, the Commission has excluded Small IBs

(those IBs with less than $5 million in total aggregate gross revenues

over the preceding three years) from the application of the rules and

certain DCM and SEF members from the scope of the new requirement to

record oral communications, namely FTs, CPOs, SDs, and MSPs that would

have been obligated to comply by virtue of their status as a DCM or SEF

member.

Commenters also expressed the view that the requirement to keep

transaction records in separate files identifiable by transaction and

counterparty is overbroad, overly burdensome, costly, and/or impossible

to achieve. In response, the Commission has removed the requirement

that each transaction be maintained as a separate electronic file. In

response to a request that covered persons be able to rely on another

Commission registrant's records to satisfy their recordkeeping

obligations, the Commission provided for such reliance in the final

rules, to be applicable only when the records being kept are identical.

The Commission declined to amend the Proposal in response to

certain comments. Although commenters sought a reasonableness standard

regarding oral recordkeeping and a limitation to exclude oral

communications on mobile telephones, the Commission determined to

retain the provisions of the Proposal that any covered communication

must be recorded, whether it occurs on a firm-provided or personal

device.\74\

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\74\ As discussed in more detail above, significant

technological advancements in recent years, particularly with

respect to the cost of capturing and retaining copies of electronic

material, including telephone communications, have made the prospect

of establishing recordkeeping requirements for digital and

electronic communications more economically feasible and

systemically prudent.

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The Commission also has determined not to amend the Proposal in

response to commenters stating that compliance with the new oral

communications recordkeeping requirement would be illegal in certain

jurisdictions. It is not a violation of federal law to record a

telephone call where the person recording the call is a party to the

call or one of the parties to the call has given prior consent to being

recorded.\75\ While state laws differ regarding the ability to record

customer telephone conversations, the difference is in the type of

consent to recording required. Therefore, the most a covered

participant will have to do to comply with the final oral

communications recording rule without violating any other state or

federal laws is to obtain the prior consent of the other parties to the

call to record the conversation. The Commission also notes that DCM

rules currently require all floor personnel who wear headsets to record

their conversations, so there is only an incremental burden to the

entities already subject to those rules, such as FBs.

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\75\ See 18 U.S.C. 2511(2)(d).

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iii. Changes Made in the Proposed Rule as a Result of Such Comments

In response to comments, the Commission incorporated the

following modifications to the Proposal into final regulation 1.35(a):

Reduced the scope of the obligation to record oral

[[Page 75536]]

communications as proposed by limiting it to commodity interest

transactions; reduced the retention period for records of oral

communications leading to a commodity interest transaction from five

years to one; reduced the scope of persons required to record oral

communications from FCMs, RFEDs, IBs and all members of a DCM or SEF to

FCMs, RFEDs, IBs with total aggregate gross revenues of at least $5

million over the preceding three years, and any member of a DCM or SEF

registered or required to be registered with the Commission in any

capacity, other than FTs, CPOs, SDs, and MSPs (although SDs and MSPs

are required to comply with regulations 23.202(a)(1) and (b)(1) which

require recordkeeping of certain oral communications, among other

requirements); eliminated the tagging requirement; and allowed for

covered persons to rely on the records of another Commission

registrant, where appropriate (since reliance will not be appropriate

in all circumstances as discussed in section III above) in complying

with their recording obligations, while confirming that the covered

person will be liable for any violation of the regulation.

iv. Response to ETA Comment Letter

Among other things, the Proposal stated that, except for the

proposed revision to regulation 1.35(a) requiring IBs to maintain

records of voice communications, the Proposal would not have a

significant economic effect on a substantial number of small entities.

The Proposal included a Regulatory Flexibility Analysis with respect to

the proposed requirement that IBs maintain such records. That analysis

concluded with the determination to treat equally all Commission

registrants transacting on behalf of customers with respect to keeping

records of oral communications.

The ETA commented that the Proposal failed to reflect that the vast

majority of the ETA's constituents, electrical utilities that the ETA

believes would be affected by the Proposal, are ``small entities'' and,

therefore, that an analysis under the RFA was required. The ETA's

comment letter did not specify which proposed provisions in the instant

rulemaking would affect its members or into which affected entity

category or categories its members could fall. Notably, the RFA does

not obligate the Commission to analyze the indirect effects on persons

not subject to the rule itself. As the Commission understands, those

electrical utilities that may be small entities will not be FCMs,

RFEDs, IBs with annual receipts of over $5 million, or members of a DCM

or SEF transacting business with customers. Rather, they most likely

will be end-users of the transactions conducted, the recorded rather

than the recorders. As such, there will be no direct, significant

economic impact on these electric utilities. Rather, the impact will be

imposed on the entities through which they may effect transactions.

c. A Description of and an Estimate of the Number of Small Entities to

Which the Rule Will Apply or an Explanation of Why No Such Estimate Is

Available

An IB generally \76\ is defined in CEA section 1a(31)(A) as

follows:

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\76\ CEA section 1a(31)(B), 7 U.S.C. 1a(31)(B), grants the

Commission the authority to further define the term IB.

Any person (except an individual who elects to be and is

registered as an associated person of a futures commission

merchant)--

(i) Who--

(I) Is engaged in soliciting or in accepting orders for--

(aa) The purchase or sale of any commodity for future delivery,

security futures product, or swap;

(bb) Any agreement, contract, or transaction described in

section 2(c)(2)(C)(i) or section 2(c)(2)(D)(i);

(cc) Any commodity option authorized under section 4c; or

(dd) Any leverage transaction authorized under section 19; and

(II) Does not accept any money, securities, or property (or

extend credit in lieu thereof) to margin, guarantee, or secure any

trades or contracts that result or may result therefrom; or

(ii) Who is registered with the Commission as an introducing

broker.\77\

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\77\ 7 U.S.C. 1a(31)(A).

As the Commission stated in the initial Regulatory Flexibility

Analysis, there are an estimated 1,500 IBs registered with the

Commission at any given time. As of June 30, 2012, there were 1,431

registered IBs.\78\ The Commission stated in the Proposal's Regulatory

Flexibility Analysis that a large percentage of registered IBs are

``guaranteed'' IBs,\79\ many of which may be small entities.\80\

However, the Commission estimates that limiting, with respect to IBs,

the scope of final regulation 1.35(a) to non-Small IBs excludes more

than 95% of registered IBs from regulation 1.35's oral communications

recordkeeping requirement. Thus, the Commission expects that no more

than approximately 75 registered IBs will be subject to the final oral

recordkeeping requirements of regulation 1.35(a) at any one time.

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\78\ Source: NFA.

\79\ A guaranteed IB (``GIB'') is an IB that ``does not have to

maintain a partic[ul]ar level of net capital but, instead, is

guaranteed by a particular FCM/RFED and is generally required to

introduce all its business to that FCM/RFED.'' Independent IBs

``must maintain adjusted net capital of at least $45,000 but may

introduce business to any registered FCM/RFED.'' NFA, What is the

difference between an independent IB and a guaranteed IB?, available

at http://www.nfa.futures.org/nfa-faqs/registration_faqs/requirements-for-FCM-IB-applicants/what-is-difference-between-IIB-and-GIB.html last visited Sept. 28, 2012.

\80\ According to the NFA, as of June 30, 2012, there were 832

registered GIBs.

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d. A Description of the Projected Reporting, Recordkeeping, and Other

Compliance Requirements of the Rule, Including an Estimate of the

Classes of Small Entities Which Will Be Subject to the Requirement and

the Type of Professional Skills Necessary for Preparation of the Report

or Record

Regulation 1.35(a), as amended, will require, among others, non-

Small IBs to record all oral communications that lead to the execution

of a commodity interest transaction.\81\ The regulation is primarily a

recordkeeping requirement, which will obligate covered IBs that do not

already do so to record their oral communications \82\ or the oral

communications of their traders and sales forces. The final rules

provide for a retention period of one year for all records of oral

communications that lead to the execution of a transaction in a

commodity interest. This modification responds to comments stating that

the proposed retention period of five years for records of oral

communications was too long. This also is consistent with the final

provision for SD and MSP oral communications under new regulation

23.203(b)(2).

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\81\ The Proposal had required recording of oral communications

that lead to the execution of a commodity interest and cash

commodity transaction. See the Proposal, 77 FR at 33091.

\82\ Covered market participants will be allowed to arrange with

third parties, including DCMs, SEFs, and FCMs, to have access to the

DCMs', SEFs', or other Commission registrants' records and, to the

extent the records are duplicative of what would be required ofby

the covered entity under the rule, may rely on such records to

satisfy their own recordkeeping obligations. The Commission

notesNote, however, that this does not relieve the covered

participant from liability for compliance failures.

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[[Page 75537]]

e. A Description of the Steps the Agency Has Taken To Minimize the

Significant Economic Impact on Small Entities Consistent With the

Stated Objectives of Applicable Statutes, Including a Statement of the

Factual, Policy, and Legal Reasons for Selecting the Alternative

Adopted in the Final Rule and Why Each One of the Other Significant

Alternatives to the Rule Considered by the Agency Which Affect the

Impact on Small Entities Was Rejected

In connection with adopting the final rules, the Commission

considered, as alternatives, establishing different compliance or

reporting requirements that take into account the resources available

to smaller entities, exempting smaller entities from coverage of the

disclosure requirements, and clarifying, consolidating, or simplifying

disclosure for small entities. In response to comments that the

proposed oral communications recordkeeping requirement would be overly

burdensome for small IBs, the Commission dramatically scaled back the

scope of regulation 1.35(a) as it applies to oral recordkeeping by IBs,

reducing by well more than half the number of IBs expected to be

subject to the requirement. The Commission further reduced the impact

on IBs by limiting the oral communications recordkeeping requirement to

commodity interest transactions from the proposed commodity interest

and cash commodity transactions.

Although commenters sought a reasonableness standard regarding oral

recordkeeping and a limitation to exclude oral communications on mobile

telephones, the Commission has retained the provisions of the Proposal

that any covered communication must be recorded, whether it occurs on a

firm-provided or personal device.\83\ The Commission is, however,

ameliorating the impact thereof by stating that it will consider good

faith compliance with policies and procedures reasonably designed to

comply with the oral communications recording requirement as a

mitigating factor when exercising its discretion for violations of the

requirement.

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\83\ As discussed in more detail above, significant

technological advancements in recent years, particularly with

respect to the cost of capturing and retaining copies of electronic

material, including telephone communications, have made the prospect

of establishing recordkeeping requirements for digital and

electronic communications more economically feasible and

systemically prudent.

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C. Consideration of Costs and Benefits

Section 15(a) of the CEA requires the Commission to consider the

costs and benefits of its actions before promulgating a regulation

under the CEA or issuing certain orders. Section 15(a) further

specifies that the costs and benefits shall be evaluated in light of

the following five broad areas of market and public concern: (1)

Protection of market participants and the public; (2) efficiency,

competitiveness and financial integrity of futures markets; (3) price

discovery; (4) sound risk management practices; and (5) other public

interest considerations. The Commission considers the costs and

benefits resulting from its discretionary determinations with respect

to the section 15(a) factors.

1. Background

The markets subject to the jurisdiction of the Commission have

undergone a significant transformation over the last few decades, and

particularly in the last few years. Technological advances have

contributed to a tremendous growth in trading volume in swaps as well

as other derivatives, including futures, as well as the number and type

of market participants. Among other notable changes, today's derivative

markets include significant numbers of retail customers that invest in

the commodity markets through a variety of means. Markets are also more

interconnected than ever before, with order flow distributed across

multiple trading centers. With this interconnectivity comes not only

positive efficiencies, but also the potential for cross-market

manipulation that can be difficult to detect and prove without ready

access to information evincing the intent of those engaged in market

activity. In addition, the Commission notes that requiring the

recording and retention of oral communications will serve as a

disincentive for covered entities to make fraudulent or misleading

communications to their customers over the telephone and could serve as

a meaningful deterrent against violations such as trading ahead of

customer orders by providing a record of the time that a customer's

telephone order is received.

In July 2010, Congress passed the Dodd-Frank Act which, among other

things, establishes a comprehensive regime for the regulation of swaps.

The Dodd-Frank Act brings swaps under the Commission's jurisdiction and

obligates the Commission to adopt new regulations related to

registration and regulation of SDs and MSPs, trade execution and

clearing requirements, and swap data recordkeeping and real time

reporting. In section 731 of the Dodd-Frank Act, Congress added CEA

section 4s to require the registration and regulation of SDs and MSPs

by the Commission, including the establishment of requirements for SDs

and MSPs to keep records of swap transactions.\84\

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\84\ 76 FR 33066.

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In response to Congress' act of requiring that SDs and MSPs keep

daily trading records of their swaps, including records of

communications made by telephone,\85\ and to be consistent with the

oral communications recordkeeping requirement for SDs and MSPs in

connection with their swap and related cash and forward

transactions,\86\ the Commission is exercising its discretion to amend

its regulations to require FCMs, RFEDs, non-Small IBs (i.e., IBs that

have generated more than $5 million in aggregate gross revenues over

the preceding three years) \87\ and members of a DCM or SEF who are

registered or required to register with the Commission in any capacity

other than FTs, CPOs, SDs, and MSPs to record all oral communications

that lead to the execution of a transaction in a commodity interest.

FBs that are members of a DCM or SEF are required to record all oral

communications that lead to the purchase or sale for any person other

than the FB of any commodity for future delivery, security futures

product, swap, or commodity option authorized under section 4c of the

Act. In this way, the Commission is affording the other markets subject

to its jurisdiction the same market integrity and customer protections

that Congress afforded the swaps markets in the Dodd-Frank Act. The

Commission recognizes that these benefits are not without cost, and has

carefully considered both benefits and costs in light of the

considerations provided in CEA section 15(a) and, where appropriate,

adopted alternatives to the Proposal that would achieve similar

benefits as proposed, but at a lower cost.

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\85\ See 7 U.S.C. 6s(g)(1).

\86\ See SD and MSP Recordkeeping Final Rule, 77 FR at 20203-04

(Regulation 23.202(a)(1) and (b)(1)).

\87\ See note 2323, supra, for discussion of definition of Small

IB.

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2. Summary of the Final Rule

Prior to this amendment, regulation 1.35(a) specified which parties

are required to keep written records related to commodity futures,

commodity options, and cash commodities, and what information they are

required to record. The requirements of regulation 1.35(a) applied to

FCMs, RFEDs, IBs, and DCM members.

[[Page 75538]]

As discussed above, the Commission is adopting a provision

requiring certain entities to record all oral communications leading to

the execution of a transaction in a commodity interest. Unlike existing

regulation 1.35(a), this new provision will apply to FCMs, RFEDs, non-

Small IBs, and DCM and SEF members that are registered or required to

be registered with the Commission in any capacity other than as an FT,

CPO, SD or MSP.

As described above, the Commission considered adopting an exclusion

for certain FBs similar to the exclusion for Small IBs, but determined

to not adopt such an exclusion, in part, because FBs are parties to

oral communications relating to the means or methods by which a trade

will be executed. However, the Commission did determine to limit the

application of the rule to FBs so that an FB will only be required to

record their oral communications that lead to the purchase or sale for

any person other than the FB of any commodity for future delivery,

security futures product, swap, or commodity option authorized under

section 4c of the CEA. This provision of the final rule addressed

commenter concerns that the Proposal inappropriately captured the oral

communications of certain members of DCMs who currently are registered

as FBs, but are solely trading for their own accounts, i.e., acting as

FTs. In addition, in response to comments regarding implementation

challenges associated with oral recordkeeping requirements for SDs and

MSPs, the Commission is extending the implementation deadline to

provide these entities with approximately one year to comply following

the publication of the final rule.\88\ This change provides entities

subject to regulation 1.35(a) with the same amount of implementation

time as was made available to SDs and MSPs.\89\ The Commission believes

that an extended period for implementation is warranted in order to

ensure that entities subject to this rule have adequate time to address

the implementation challenges noted by SIFMA, as discussed below.

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\88\ See letter from SIFMA dated August 10, 2012, Re: Request

for No-Action Relief: Recordkeeping Requirements under the Internal

Business Conduct Rules. Available at: [XXXX].

\89\ See Letter from the Division of Swap Dealer and

Intermediary Oversight of the CFTC to SIFMA, dated Oct. 29, 2012,

CFTC Letter No. 12-29. Available at: http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/12-29.pdf.

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3. Benefits

By this action, the Commission improves its ability to ensure the

integrity of all the markets subject to its jurisdiction and that

customers are similarly protected, whether they be engaged in a swap

with an SD, or a futures transaction with an FCM.

As stated above, the markets subject to the jurisdiction of the

Commission have undergone a significant transformation over the last

few decades, and particularly in the last few years. Technological

advances have contributed to a tremendous growth in trading volume as

well as the number and type of market participants, including

significant numbers of retail customers that invest in the commodity

markets through a variety of means. Markets are also more

interconnected than ever before, with order flow distributed across

multiple trading centers. This interconnectivity yields important

benefits but also presents increased risk, including the potential for

cross-market manipulation where an action in one market is purposefully

orchestrated to yield a desired outcome in another market. Therefore,

to ensure that the integrity of the markets and customers are similarly

protected across all markets subject to the Commission's jurisdiction,

the Commission must have similar access to information regardless of

whether the market participant is registered, for example, as an SD or

an FCM.

As the Commission explained when adopting similar

transactional level recordkeeping requirements for SDs and MSPs, the

Commission believes these recordkeeping requirements will protect

market participants and promote the integrity of the markets by

ensuring the existence of an audit trail that includes relevant oral

communications. A strong audit trail, among other things: Provides a

basis for efficiently resolving transactional disputes; acts as a

disincentive to engage in unduly risky, injurious, or illegal conduct

in that the conduct will be traceable; and in the event such conduct

does occur, provides a mechanism for policing such conduct, both

internally as part of a firm's compliance efforts and externally by

regulators enforcing applicable laws and regulations.

With respect to the latter-noted benefit--enforcing applicable laws and

regulations--oral records have proven to be no less, and in some cases

perhaps more, valuable than written records alone.\90\

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\90\ See note 4646, supra.

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By requiring records of all communications leading to a transaction

in a commodity interest, the public benefits and the financial

integrity of the markets is protected because additional documentation

enhances the Commission's ability to detect and enforce rule

violations, including manipulation and fraud. In particular, records of

oral communications related to such transactions provide a record of

the facts and circumstances that give rise to a violation that can be

used in enforcement proceedings to redress the same. Effective

enforcement of the Commission's regulations, particularly those

prohibiting fraud and manipulation, protects market participants and

the public and promotes the integrity of the markets subject to the

Commission's jurisdiction.

Notwithstanding the important, practical benefits of the final

rules, the Commission has considered commenters' concerns regarding

costs and product availability.

4. Costs

The public comments related to changes to regulation 1.35(a) can be

broken down into roughly four general categories: Concerns about the

costs of compliance to firms,\91\ concerns about the feasibility of

complying with the requirements of the regulation,\92\ concerns about

market participants choosing to exit the market or of a market

bifurcation,\93\ and privacy concerns.\94\

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\91\ See, e.g., FIA; NFA; ICE, Inc.; Hunton and Williams, LLP;

National Grain and Feed Association, Land O' Lakes; Minneapolis

Grain Exchange, Inc.; CME Group; Commodity Markets Council;

Barclay's Capital; Amcot; Grain and Feed Association of Illinois;

Agribusiness Council of Indiana; Minnesota Grain and Feed

Association; Agribusiness Association of Iowa; American Petroleum

Institute; Ohio AgriBusiness Association; American Feed Industry

Association; South Dakota Grain and Feed Association; Natural Gas

Supply Association; Commodity Markets Council; Natural Gas Supply

Association; the Fertilizer Institute; Kansas City Board of Trade;

Oklahoma Grain and Feed Association; Electric Power Supply

Association; Henderson & Lyman; Rocky Mountain Agribusiness

Association; American Cotton Shippers Association.

\92\ See, e.g., Land O'Lakes; Minneapolis Grain Exchange, Inc.;

CME Group; Commodity Markets Council.

\93\ See, e.g., National Grain and Feed Association; Grain and

Feed Association of Illinois; Agribusiness Council of Indiana;

Minnesota Grain and Feed Association; Agribusiness Association of

Iowa; Ohio AgriBusiness Association; American Feed Industry

Association; Kansas City Board of Trade.

\94\ See, e.g., Virginia Nobbe; American Feed Industry

Association; Henderson and Lyman.

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Commenters cited a broad range of compliance costs associated with

setting up and maintaining systems to record and tag oral

communications. One commenter that is a recording technology provider

stated that it would cost in the range of $50/month to record a

landline phone or $90/month to record a mobile phone with minimal

[[Page 75539]]

fixed setup costs. They also stated that market participants may be

able to negotiate more favorable rates if they are able to sign longer

contracts, or if they have a large number of phones and/or landlines

that need to be recorded. While other commenters did not provide per

line estimates, they did provide aggregate cost estimates that are

significantly higher than those cited above.\95\

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\95\ For example, FIA cited expenditures on the part of several

of its members of between $300,000-$600,000 to upgrade and maintain

their landline phones in order to record conversations and estimated

expenditures of anywhere from $160,000 to $2.5 million to record

conversations on mobile phones depending on firm size. Further, FIA

cited a fee of $500,000 to purchase licenses for ``word spotting''

software to search and retrieve these oral records. The Commercial

Energy Working Group stated that this compliance with the amended

regulation 1.35 could cause costs to firms to ``increase

exponentially'' (they cited an ``unidentified investment bank'' in

the UK that spent $4.2 million each year to monitor its Blackberry

phones in response to a similar Financial Services Authority

mandate).

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The Commission has considered that the requirement to record and

maintain records of oral communications that lead to the execution of

commodity interest transactions will create additional costs for market

participants subject to the requirements. Those costs include set-up

costs to implement voice recording technology on both landlines and

mobile phones, recurring costs (such as a monthly fee per user or per

phone line to record), and the costs incurred by data storage.

Commenters estimate that for participants using a so-called ``cloud-

based solution,'' the monthly fees would be approximately $90/month/

phone for mobile phones, and approximately $50/month/line for

landlines. The setup costs, in each case, are estimated to be roughly

one month's subscription fees or less.\96\ Commenters estimate that

data storage costs are likely to be approximately $13/month/line.\97\

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\96\ Compliant Phones.

\97\ Id.

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According to commenters, internal recording solutions (i.e., ``non-

cloud-based solutions'') typically entail more significant

implementation costs, though those costs are likely to vary widely

based on existing technology, and particularly on any existing

recording capabilities, that an entity already has. The Commission does

not have adequate data to estimate the number of entities that already

have recording capabilities, or the extent to which such capabilities

are deployed in parts of the organization that would be impacted by the

oral recordkeeping requirements in regulation 1.35.

SIFMA, in response to the final oral recordkeeping requirements for

SDs and MSPs, noted implementation challenges related to recording

calls made on both landlines and cell phones, recording calls outside

the U.S., and the ability to search and retrieve records of calls, and

requested additional time to address those challenges.\98\

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\98\ See SD and MSP Recordkeeping Final Rule, 77 FR 20128. Based

on SIFMA's representations, the Commission determined that relief

from certain oral recordkeeping requirements for SDs and MSPs is

warranted to address the issues presented, and granted no-action

relief to SDs and MSPs until March 31, 2013.

Among other things, SIFMA stated that implementing systems to

record landline conversations will require upgrades to data

retention infrastructure, testing that must occur on nights and

weekends, and overcoming difficulties obtaining products and

services. Further, they stated that mobile phone recording

technology has ``not achieved the levels of stability, performance

and scalability that would be considered for commercial grade

products.'' They stated that shipping delays, testing and

troubleshooting challenges due to different time zones, legal

requirements, and ``an apparent lack of recording capabilities'' in

certain countries and uncertainty about what transactions may be

subject to the requirements would delay efforts to implement

solutions in foreign offices. And last, they asserted that

limitations related to caller identification technology and

associated metadata would prevent SDs and MSPs from rapidly

implementing solutions that would enable them to search and retrieve

calls related to specific counterparties or transactions.

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The Commission, mindful of the fact that the entities subject to

this rule will likely face some of the same implementation challenges,

is providing the same amount of time for entities subject to regulation

1.35(a) to comply as was afforded to SDs and MSPs to comply with

regulations 23.202(a)(1) and (b)(1). In addition, 1.35(a)(4)(i) permits

entities seeking to comply in good faith with the oral communications

recordkeeping requirements of regulation 1.35(a)(1) to submit a request

for relief if compliance is technologically or economically

impracticable for an affected entity prior to the compliance deadline.

The Commission anticipates that the additional time for implementation

will benefit entities subject to this rule by providing more time to

address the challenges noted by SIFMA. Moreover, it will create

opportunities for entities that are subject to this rule to benefit

from solutions developed by vendors serving SDs and MSPs.

The Proposal included an additional requirement that transaction

records be kept in separate electronic files identifiable by

transaction and counterparty.\99\ In response to comments, the

Commission is not adopting that requirement, such that firms are not

required to keep records in separate electronic files. Instead, firms

are only required to identify and retrieve relevant records upon

Commission request. Therefore, the cost associated with ``tagging'' of

oral communication records has been eliminated. Relevant entities,

however, will need to be able to search and select records related to a

particular transaction or counterparty when the Commission requests

them. The Commission expects that this may be done in one of two ways.

Market participants may use an electronic means of scanning records by

key word or they may identify key words and concepts in records

manually by listening to the recordings. In either case, participants

must be able to identify and retrieve records if they are required to

do so by the Commission.

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\99\ With respect to the proposed requirement that entities

proactively identify which communications relate to specific

traders, trades, and counterparties and then ``tag'' them as such,

comments expressed concerns regarding the reliability of

technological solutions. For instance, the FIA writes, ``We

understand that two software providers, NICE Actimize and Nexidia,

offer so-called `word spotting' programs'' but that they believe

that these programs ``are not foolproof and may identify less than

50 percent of potentially relevant conversations.'' The Commercial

Energy Working Group stated that in lieu of an accurate software

solution, manual identification and retrieval of oral records would

require ``as many as 3-5 analysts and 1-2 additional technical

support personnel to support transactions'' for ``a small or modest-

sized end-user commodity business'' and that ``the total cost to a

commodity business is likely to be in excess of $1 million

annually.''

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If, when recordings are requested by the Commission, an entity

chooses to assign or hire personnel to listen to recordings and

identify those being requested, the costs will vary significantly

depending on the number and length of oral communications that must be

reviewed. These variables will, in turn, be influenced by a host of

other factors, including: the number of transactions or counterparties

for which relevant recordings must be identified; the length of time

across which specified traders were active or specified trades were

likely discussed, or the specified counterparties were in contact with

the entity from whom the recordings are requested; the number of oral

communications that specified traders or counterparties made during the

period that may be in question; and the average length of each call.

The Commission estimates that in such cases, an entity might dedicate

personnel to spend as little as 50 hours reviewing recordings, or as

much as 5,000 hours reviewing recordings. The average wage for a

compliance specialist is $155.96 per hour and therefore the cost for

manual review, if an entity chooses that option when the

[[Page 75540]]

Commission requests records, could range from $7,800 to $780,000.\100\

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\100\ The average wage for a compliance specialist is $155.96

[($58,303 per year)/(2,000 hours per year) * 5.35 = $155.96]. For

the purposes of the Cost Benefit Considerations section, the

Commission has used wage estimates that are taken from the SIFMA

``Report on Management and Professional Earnings in the Securities

Industry 2011'' because industry participants are likely to be more

familiar with them. Hourly costs are calculated assuming 2,000 hours

per year and a multiplier of 5.35 to account for overhead and

bonuses. All totals calculated on the basis of cost estimates are

rounded to two significant digits.

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Alternatively, the Commission is aware that vendors that provide

recording services are also capable of providing speech analytic search

capabilities for a set fee. For example, one vendor estimated this cost

at $40 to $80 per user per month.\101\ According to commenters, other

entities may choose to acquire speech analytics services that can be

housed internally rather than on the vendor's servers. Another vendor

stated that the costs would depend on the number of hours sent through

the speech analytics device and that initial deployment costs would

likely range from $160,000 to $1,500,000 for the largest organizations

with ongoing annual fees that are approximately 18% of the initial cost

($29,000--$270,000 per year). Alternatively, small entities can

implement a desktop solution with the same analytics capabilities. The

initial license costs approximately $25,000 per user and 18% ongoing

maintenance fees ($4,500 per year per user).\102\ Another vendor

estimated that setup costs, including relevant licenses, would range

from $450,000 for a small entity to $4,000,000 for a large entity, and

that annual maintenance costs would range from $80,000 to

$800,000.\103\ These numbers assume that entities do not yet have

speech analytics services being used in other parts of the company's

operations that could be expanded to include the oral records required

under this rule. However, the Commission understands that some of the

largest financial entities may already be customers of companies that

provide speech analytics services. As a consequence, the costs for

those entities may be less than if they were implementing speech

analytics services de novo.

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\101\ See Compliant Phones communication.

\102\ See Nexidia communication.

\103\ See NICE communication.

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In response to the Proposal, some commenters expressed concern that

the imposition of more stringent recordkeeping requirements on DCM

members could prompt a bifurcation in the markets for certain services

because of the compliance cost advantage that market participants who

are not DCM members enjoy.\104\ They suggested that entities that are

DCM members might stop offering services that make them subject to the

regulation 1.35 requirements.\105\

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\104\ Several commenters submitted a form letter addressing this

point. Entities submitting this letter, with minor modifications in

some cases, include: National Grain and Feed Association, Grain and

Feed Association of Illinois, Agribusiness Council of Indiana,

Minnesota Grain and Feed Association, Agribusiness Association of

Iowa, Ohio AgriBusiness Association, South Dakota Grain and Feed

Association, Kansas City Board of Trade, and Oklahoma Grain and Feed

Association.

\105\ For instance, the Kansas City Board of Trade writes that

the operators of delivery warehouses are often required to be DCM

members and that the added expense of compliance with regulation

1.35 could cause firms to withdraw from the business of providing

warehousing services, thereby decreasing market competitiveness.

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In the Proposal, the Commission proposed to include FCMs, RFEDs,

IBs, and all DCM and SEF members under the oral recordkeeping

requirement and also proposed that such recordkeeping requirements

would apply to all transactions in commodity interests and cash

commodities. However, in the final rule, the Commission amended

regulation 1.35(a) such that Small IBs and members of DCMs and SEFs who

are not otherwise registered or required to be registered with the

Commission in any capacity, as well as those members registered as FTs,

CPOs, SDs, and MSPs, are not subject to the oral communication

recordkeeping requirements under regulation 1.35(a). The limiting

principle for the determination of which classes of registrants must

comply with the final rule are, as discussed further above,

transactions by entities that could affect both market integrity and

customer protection.

Finally, some commenters expressed concern that if employees of a

regulated entity use personal phones (either landline or mobile) for

business purposes, calls on those lines must be recorded. Commenters

stated privacy concerns with the same. However, simple solutions to

protect employee privacy do exist. For example, depending on the

policies of the firm, it is possible for certain phone numbers to be

excluded from recording.\106\ Alternatively, the company could

institute a policy that employees are not to conduct personal business

on recorded lines.

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\106\ See Compliant Phones communication.

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In addition, amendments in this final rule will require SEF members

to comply with regulation 1.35, and it is likely that some of those

members will not have been subject to regulation 1.35(a) previously. In

addition to the costs related to oral communications recordkeeping,

mentioned above, the Commission estimates that SEF members that are

newly subject to regulation 1.35(a) will spend additional time each day

compiling and maintaining transaction records. The Commission estimates

that the cost of that additional time is $236,000 to $393,000 per

entity per year.\107\

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\107\ This is estimated to take 6-10 hours per day (assuming 252

days per year) of the time of an office services supervisor. The

average wage for an office services supervisor is $155.96 [($58,303

per year)/(2,000 hours per year) * 5.35 = $155.96]. $155.95*6*252 =

235,812.31. $155.95*10*252 = 393,020.52.

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Also, the amendments in this final rule will require FCMs, RFEDs,

IBs, and members of DCMs to comply with the regulation 1.35(a)

recordkeeping requirements for any swap transactions into which they

enter. The Commission estimates that such entities will spend an

additional 0.5 hours per swap capturing and maintaining the records

required under regulation 1.35(a), and therefore estimates that the

per-swap cost will be $83.00.\108\

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\108\ This estimates 0.5 hours of time from an office services

supervisor. The average salary for an office services supervisor is

$165.25/hour [($61,776 per year)/(2,000 hours per year) * 5.35 =

$165.25 per hour]. $165.25*0.5 = $82.63.

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4. Consideration of Alternatives

As compared to the Proposal, the Commission has limited the range

of entities that are subject to the oral recordkeeping requirement,

narrowing it to entities that could affect market integrity and

customer protection by way of their function as intermediaries for

other parties. The Commission also has limited the range of

transactions that are subject to the requirement from commodity

interest and cash commodity transactions to commodity interest

transactions. Limiting the range of entities that must record and keep

oral communications reduces the number of entities that must bear the

costs of creating and maintaining records required by regulation

1.35(a). In particular, by excluding from the new regulation 1.35(a)

oral communications recordkeeping provisions Small IBs and DCM or SEF

members that are registered as FTs or CPOs, or SDs or MSPs (as SDs and

MSPs are covered by regulations 23.202(a)(1) and (b)(1)), or neither

registered nor required to be registered with the Commission in any

capacity, certain entities such as agricultural cooperatives, energy

end-users and other smaller entities that may transact on DCMs and SEFs

on their own behalf, but not on behalf of customers, avoid mandatory

recordkeeping costs.

[[Page 75541]]

As noted above, new regulation 1.35 will not require entities to

keep records in separate electronic files. Instead, the amendments as

adopted require only that subject entities be able to identify which

records relate to specific parties or transactions when requested to do

so by the Commission. Such requests are infrequent for any one market

participant, and therefore the costs of complying with them will be far

less than what would have been the case under the proposed rule.

As described above, the Commission considered alternatives to

compliance, including various safe harbors, but determined not to adopt

them. For example, the Commission has considered, but declines to

adopt, recommendations that it include a ``reasonableness'' standard

because such a standard could result in market participants documenting

policies and procedures but failing to vigorously monitor for

compliance with the same. The Commission also declines to adopt this

recommendation as inconsistent with the requirements applicable to SDs

and MSPs under Part 23 of the Commission's regulations. Rather, the

Commission determines that it would be more appropriate to consider

good faith compliance with policies and procedures reasonably designed

to comply with the oral communications recording rule as a mitigating

factor when exercising its enforcement discretion with respect to

violations of the rule.

5. Consideration of Section 15(a) Factors

(1) a. Protection of Market Participants and the Public

The oral recordkeeping requirement in regulation 1.35(a) will

protect market participants and the public by ensuring the existence of

an audit trail that includes relevant oral communications. A strong

audit trail, among other things, provides a basis for resolving

transactional disputes; acts as a disincentive to engage in unduly

risky, injurious or illegal conduct in that the conduct will be

traceable; and in the event such conduct does occur, provides a

mechanism for policing such conduct, both internally as part of a

firm's compliance efforts and externally by regulators enforcing

applicable laws and regulations.

(2) b. Efficiency, Competitiveness, and Financial Integrity of Futures

Markets

Requiring records of all oral communications leading to a

transaction in a commodity interest promotes the efficiency,

competitiveness and financial integrity of the markets by increasing

the Commission's ability to detect and prosecute violations of the Act

and the Commission's rules related to fraud, manipulation and other

disruptive trade practices.

(3) c. Price Discovery

Neither the Commission nor commenters have identified consequences

for price discovery that are expected to result from this rule.

(4) d. Sound Risk Management Practices

The Commission believes that proper recordkeeping--though likely to

require initial investment in recordkeeping and other back office

systems--is essential to risk management because it facilitates an

entity's awareness of its transactions, positions, trading activity,

internal operations, and any complaints made against it, among other

things. Such awareness supports sound internal risk management policies

and procedures ensuring that decision-makers within affected entities

are fully informed about the entity's activities and can take steps to

mitigate and address significant risks faced by the firm. When

individual market participants engage in sound risk management

practices the entire market benefits. Accordingly, the Commission

believes that this final rule, notwithstanding the potential costs

identified above, will promote the public interest in sound risk

management.

(5) e. Other Public Interest Considerations

The Commission has not identified any other public interest

considerations that could be impacted by the oral communications

recordkeeping rule under regulation 1.35(a).

List of Subjects in 17 CFR Part 1

Agricultural commodity, Agriculture, Brokers, Committees, Commodity

futures, Conflicts of interest, Consumer protection, Definitions,

Designated contract markets, Directors, Major swap participants,

Minimum financial requirements for intermediaries, Reporting and

recordkeeping requirements, Swap dealers, Swaps.

For the reasons stated in the preamble, under the authority of 7

U.S.C. 1 et seq., the Commodity Futures Trading Commission hereby

amends Chapter I of Title 17 of the Code of Federal Regulations as set

forth below:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0

1. The authority citation for part 1 continues to read as follows:

Authority: 7 U.S.C. 1a, 2, 2a, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g,

6h, 6i, 6k, 6l, 6m, 6n, 6o, 6p, 6r, 6s, 7, 7a-1, 7a-2, 7b, 7b-3, 8,

9, 10a, 12, 12a, 12c, 13a, 13a-1, 16, 16a, 19, 21, 23, and 24, as

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

Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376 (2010).

0

2. Amend Sec. 1.31 by revising paragraph (a)(1) to read as follows:

Sec. 1.31 Books and records; keeping and inspection.

(a)(1) All books and records required to be kept by the Act or by

these regulations shall be kept in their original form (for paper

records) or native file format (for electronic records) for a period of

five years from the date thereof and shall be readily accessible during

the first 2 years of the 5-year period; Provided, however, That records

of any swap or related cash or forward transaction shall be kept until

the termination, maturity, expiration, transfer, assignment, or

novation date of the transaction and for a period of five years after

such date. Records of oral communications kept pursuant to Sec. Sec.

1.35(a) and 23.202(a)(1) and (b)(1) of this chapter shall be kept for a

period of one year. All such books and records shall be open to

inspection by any representative of the Commission, or the United

States Department of Justice. For purposes of this section, native file

format means an electronic file that exists in the format in which it

was originally created.

* * * * *

0

3. Amend Sec. 1.35 by revising the section heading and paragraph (a)

to read as follows:

Sec. 1.35 Records of commodity interest and related cash or forward

transactions.

(a) Futures commission merchants, retail foreign exchange dealers,

introducing brokers, and members of designated contract markets or swap

execution facilities. (1) Each futures commission merchant, retail

foreign exchange dealer, introducing broker, and member of a designated

contract market or swap execution facility shall keep full, complete,

and systematic records, which include all pertinent data and memoranda,

of all transactions relating to its business of dealing in commodity

interests and related cash or forward transactions. Included among such

records shall be all orders (filled, unfilled, or canceled), trading

cards, signature cards, street books, journals, ledgers, canceled

checks, copies of confirmations, copies of statements of purchase and

sale, and all other records, which have been prepared in the course of

its business of dealing in commodity

[[Page 75542]]

interests and related cash or forward transactions. Among such records

each member of a designated contract market or swap execution facility

must retain and produce for inspection are all documents on which trade

information is originally recorded, whether or not such documents must

be prepared pursuant to the rules or regulations of either the

Commission, the designated contract market or the swap execution

facility. For purposes of this section, such documents are referred to

as ``original source documents.'' Such records shall be kept in a form

and manner identifiable and searchable by transaction. Also included

among the records required to be kept by this paragraph are all oral

and written communications provided or received concerning quotes,

solicitations, bids, offers, instructions, trading, and prices that

lead to the execution of a transaction in a commodity interest and

related cash or forward transactions, whether communicated by

telephone, voicemail, facsimile, instant messaging, chat rooms,

electronic mail, mobile device, or other digital or electronic media;

provided, however, the requirement in this paragraph (a)(1) to record

oral communications shall not apply to:

(i) Oral communications that lead solely to the execution of a

related cash or forward transaction;

(ii) Oral communications provided or received by a floor broker

that do not lead to the purchase or sale for any person other than the

floor broker of any commodity for future delivery, security futures

product, swap, or commodity option authorized under section 4c of the

Commodity Exchange Act;

(iii) An introducing broker that has generated over the preceding

three years $5 million or less in aggregate gross revenues from its

activities as an introducing broker;

(iv) A floor trader;

(v) A commodity pool operator;

(vi) A swap dealer;

(vii) A major swap participant; or

(viii) A member of a designated contract market or swap execution

facility that is not registered or required to be registered with the

Commission in any capacity.

(2) For purposes of paragraph (a)(1) of this section, ``related

cash or forward transaction'' means a purchase or sale for immediate or

deferred physical shipment or delivery of an asset related to a

commodity interest transaction where the commodity interest transaction

and the related cash or forward transaction are used to hedge, mitigate

the risk of, or offset one another.

(3) Each futures commission merchant, retail foreign exchange

dealer, introducing broker, and member of a designated contract market

or swap execution facility shall retain the records required to be kept

by this section in accordance with the requirements of Sec. 1.31, and

produce them for inspection and furnish true and correct information

and reports as to the contents or the meaning thereof, when and as

requested by an authorized representative of the Commission or the

United States Department of Justice.

(4)(i) The Commission may in its discretion establish an

alternative compliance schedule for the requirement to record oral

communications under paragraph (a)(1) of this section that is found to

be technologically or economically impracticable for an affected entity

that seeks, in good faith, to comply with the requirement to record

oral communications under paragraph (a)(1) of this section within a

reasonable time period beyond the date on which compliance by such

affected entity is otherwise required.

(ii) A request for an alternative compliance schedule under

paragraph (a)(4)(i) of this section shall be acted upon within 30 days

from the time such a request is received, or it shall be deemed

approved.

(iii) The Commission hereby delegates to the Director of the

Division of Swap Dealer and Intermediary Oversight or such other

employee or employees as the Director may designate from time to time,

the authority to exercise the discretion. Notwithstanding such

delegation, in any case in which a Commission employee delegated

authority under this paragraph believes it appropriate, he or she may

submit to the Commission for its consideration the question of whether

an alternative compliance schedule should be established. The

delegation of authority in this paragraph shall not prohibit the

Commission, at its election, from exercising the authority set forth in

paragraph (a)(4)(i) of this section.

(iv) Relief granted under paragraph (a)(4)(i) of this section shall

not cause an affected entity to be out of compliance or deemed in

violation of any recordkeeping requirements.

* * * * *

Issued in Washington, DC, on December 17, 2012, by the

Commission.

Sauntia S. Warfield,

Assistant Secretary of the Commission.

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendices to Adaptation of Regulations To Incorporate Swaps--

Commission Voting Summary and Statements of Commissioners

Appendix 1--Commission Voting Summary

On this matter, Chairman Gensler and Commissioners Sommers,

Chilton, O'Malia and Wetjen voted in the affirmative; no

Commissioner voted in the negative.

Appendix 2--Statement of Chairman Gary Gensler

I support the final rule to amend 1.31 and 1.35(a) of the

Commodity Futures Trading Commission's (CFTC) regulations to conform

them to recordkeeping requirements for swap dealers and major swap

participants. The rule enhances the Commission's enforcement program

for the futures market to promote market integrity and protect

customers.

These conforming amendments integrate the CFTC's regulations

with the Dodd-Frank Wall Street Reform and Consumer Protection Act

(Dodd-Frank Act), which expanded the scope of the Commodity Exchange

Act to include swaps.

As proposed, the rule would have required members of a

designated contract market (DCM) or swap execution facility (SEF) to

record all oral communications that lead to the execution of a

transaction in a cash commodity. The Commission received numerous

comments about the effect of such a requirement on members of the

agricultural community that trade in cash commodities and are not

required to be registered with the Commission other than, in some

cases, as floor traders.

In consideration of comments, the Commission adopted

modifications that preserve the rule's purpose without adversely

affecting the agricultural community. Only those oral communications

that lead to a transaction in a commodity interest (i.e. a commodity

futures contract, commodity option contract, foreign exchange

contract, or swap) will have to be recorded. Furthermore, only FCMs,

certain introducing brokers (IBs), retail foreign exchange dealers

(RFEDs), and those members of a DCM or SEF who are registered or

required to be registered with the Commission (except for floor

traders, commodity pool operators, swap dealers, major swap

participants, and floor brokers who trade for themselves) will have

to record oral communications.

Market participants that must comply will be required to record

communications relating to: Quotes, solicitations, bids, offers,

instructions, trading, and prices that lead to the execution of a

transaction in a commodity interest. Methods of communication that

fall under the rule include telephone, voicemail, facsimile, instant

messaging, electronic mail, mobile device, or other digital or

electronic media. Thus, the rulemaking also clarifies that the

existing requirement under regulation 1.35(a) to keep written

records applies to electronic written communications, such as emails

and instant messages. Records of oral communications must be kept

for one year.

The rule will make enforcement investigations more efficient by

preserving

[[Page 75543]]

critical evidence that otherwise may be lost to memory lapses and

inconsistent recollections. The Commission will have access to

evidence of fraud and market manipulation, which is expected to

increase the success of enforcement actions for the benefit

customers, market participants and the markets. Moreover, it also

will protect customers from abusive sales practices, lower the risk

of transactional disputes and allow registrants to follow-up more

effectively on customer complaints.

[FR Doc. 2012-30691 Filed 12-20-12; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: December 21, 2012