2012-792

Federal Register, Volume 77 Issue 12 (Thursday, January 19, 2012)[Federal Register Volume 77, Number 12 (Thursday, January 19, 2012)]

[Rules and Regulations]

[Pages 2613-2629]

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

[FR Doc No: 2012-792]

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Rules and Regulations

Federal Register

________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents

having general applicability and legal effect, most of which are keyed

to and codified in the Code of Federal Regulations, which is published

under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents.

Prices of new books are listed in the first FEDERAL REGISTER issue of each

week.

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Federal Register / Vol. 77, No. 12 / Thursday, January 19, 2012 /

Rules and Regulations

[[Page 2613]]

COMMODITY FUTURES TRADING COMMISSION

17 CFR Parts 1, 3, 23, and 170

RIN 3038-AC95

Registration of Swap Dealers and Major Swap Participants

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rules.

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SUMMARY: The Commodity Futures Trading Commission (Commission or CFTC)

is adopting regulations under the Commodity Exchange Act (Act or CEA)

that establish the process for the registration of swap dealers (SDs)

and major swap participants (MSPs, and collectively with SDs, Swaps

Entities) and that require Swaps Entities to become and remain members

of a registered futures association (RFA). The Commission is also

adopting regulations that define an ``associated person'' of an SD or

MSP as a natural person and that implement the prohibition on a Swaps

Entity permitting an associated person who is statutorily disqualified

from registration from effecting or being involved in effecting swaps

on behalf of the Swaps Entity. The Commission is adopting these

regulations in accordance with section 4s of the CEA, which was

recently added to the CEA by the Dodd-Frank Wall Street Reform and

Consumer Protection Act (Dodd-Frank Act).

DATES: Effective March 19, 2012.

FOR FURTHER INFORMATION CONTACT: Barbara S. Gold, Associate Director,

Christopher W. Cummings, Special Counsel, or Elizabeth Miller,

Attorney-Advisor, Division of Swap Dealer and Intermediary Oversight,

1155 21st Street NW., Washington, DC 20581. Telephone number: (202)

418-6700 and electronic mail: [email protected], [email protected] or

[email protected]

SUPPLEMENTARY INFORMATION:

I. Introduction

A. Background

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

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

comprehensive new regulatory framework for swaps and security-based

swaps. The goal of this legislation was 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 SDs and MSPs; (2) imposing clearing and

trade execution requirements on standardized derivatives products; (3)

creating robust recordkeeping and real-time reporting regimes; and (4)

enhancing the Commission's rulemaking and enforcement authorities with

respect to, among others, all registered entities and intermediaries

subject to the oversight of the Commission. The regulations the

Commission is adopting today concern the registration of SDs and MSPs,

as required by CEA section 4s(a). As is discussed below, these final

regulations are based in large part on the Commission's proposed

registration regulations for SDs and MSPs (Proposal).\4\

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\1\ 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 may be accessed through the Commission's Web site,

http://www.cftc.gov/.

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

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

2010.''

\3\ 7 U.S.C. 1 et seq. (2006). The CEA and Commission

regulations issued thereunder similarly can be accessed through the

Commission's Web site.

\4\ 75 FR 71379 (Nov. 23, 2010).

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In furtherance of the foregoing legislative goals, Dodd-Frank Act

section 721(a) amended the definitions of various existing terms in the

CEA and added definitions of numerous new terms to the CEA, including

definitions of the new terms ``swap dealer,'' ``major swap

participant,'' and ``associated person of a swap dealer or major swap

participant.'' \5\ Section 712(d)(1) of the Dodd-Frank Act directed the

Commission and the Securities and Exchange Commission (SEC), in

consultation with the Board of Governors of the Federal Reserve System,

to further define the terms ``swap dealer'' and ``major swap

participant'' (Entities Definitional Regulations).\6\ The instant

rulemaking will apply to SDs and MSPs as defined in the CEA and as

further defined by the Commission.

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\5\ See, respectively, CEA sections 1a(49), 1a(33) and 1a(4).

\6\ See 75 FR 80174 (Dec. 21, 2010).

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B. Statutory Registration Requirements for SDs and MSPs

CEA sections 4s(a) and 4s(b) \7\ provide, in pertinent part, for

the registration of SDs and MSPs as follows:

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\7\ Sections 4s(a) and 4s(b) were added to the CEA by Dodd-Frank

Act section 731.

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(a) REGISTRATION.--

(1) SWAP DEALERS.--It shall be unlawful for any person to act as a

swap dealer unless the person is registered as a swap dealer with the

Commission.

(2) MAJOR SWAP PARTICIPANTS.--It shall be unlawful for any person

to act as a major swap participant unless the person is registered as a

major swap participant with the Commission.

(b) REQUIREMENTS.--

(1) IN GENERAL.--A person shall register as a swap dealer or major

swap participant by filing a registration application with the

Commission.

(2) CONTENTS.--

(A) IN GENERAL.--The application shall be made in such form and

manner as prescribed by the Commission, and shall contain such

information, as the Commission considers necessary concerning the

business in which the applicant is or will be engaged.

CEA section 4s does not direct the Commission to adopt rules that

provide for the registration of associated persons of SDs or MSPs.

However, CEA section 4s(b)(6) makes it unlawful for a Swaps Entity to

permit a person to associate with it if the person is subject to a

statutory disqualification, as follows:

Except to the extent otherwise specifically provided by rule,

regulation, or order, it shall be unlawful for a swap dealer or

major swap participant to permit any person associated with a swap

dealer or major swap participant who is subject to a statutory

disqualification to effect or be involved in effecting swaps on

behalf of the swap dealer or major swap participant, if the swap

dealer or major swap participant knew, or in the exercise of

reasonable care should have known, of the statutory

disqualification.

For the purpose of the regulations it is adopting today, and

specifically Regulation 23.22, the Commission

[[Page 2614]]

intends that, as proposed, a statutory disqualification is a

disqualification under CEA section 8a(2) or 8a(3).\8\ These CEA

sections contain an extensive list of matters that constitute grounds

pursuant to which the Commission may refuse to register a person,

including, without limitation, felony convictions, commodities or

securities law violations, and bars or other adverse actions taken by

financial regulators.

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\8\ See 75 FR 71379, 71380. The Commission did not receive any

comments in response to this aspect of the Proposal. See Part II of

this Federal Register release, which discusses the comments the

Commission received on the Proposal.

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CEA section 4s further directs the Commission to provide for the

regulation of SDs and MSPs with respect to, among others, the following

areas: Capital and margin, reporting and recordkeeping, daily trading

records, business conduct standards, documentation standards, duties,

designation of chief compliance officer,\9\ and, with respect to

uncleared swaps, segregation \10\ (collectively, Section 4s

Requirements). The Commission is addressing the Section 4s Requirements

through other rulemakings (Section 4s Implementing Regulations)

separate and apart from the instant rulemaking, which concerns the

registration process for Swaps Entities.\11\ Certain issues relevant to

the Section 4s Implementing Regulations--i.e., the timing of their

adoption and the initial demonstration of compliance with them by SDs

and MSPs--nonetheless have an impact on the registration process for

Swaps Entities, which is discussed below in Part II of this Federal

Register release.

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\9\ CEA sections 4s(e) through (k), respectively, added to the

CEA by Dodd-Frank Act section 731.

\10\ CEA section 4s(l), added to the CEA by Dodd-Frank Act

section 724(c).

\11\ See 76 FR 23732 (Apr. 28, 2011), 76 FR 27802 (May 12, 2011)

(section 4s(e)--Capital and Margin); 75 FR 76666 (Dec. 9, 2010)

(section 4s(f)--Reporting and Recordkeeping, and section 4s(g)--

Daily Trading Records); 75 FR 80638 (Dec. 22, 2010), 75 FR 71391

(Nov. 23, 2010) (section 4s(h)--Business Conduct Standards); 75 FR

81519 (Dec. 28, 2010), 76 FR 6708 (Feb. 8, 2011), 76 FR 6715 (Feb.

8, 2011) (section 4s(i)--Documentation Standards); 75 FR 71397 (Nov.

23, 2010) (section 4s(j)--Duties); 75 FR 70881 (Nov. 19, 2010)

(section 4s(k)--Designation of Chief Compliance Officer); 75 FR

75162 (Dec. 2, 2010), 75 FR 75432 (Dec. 2, 2010), (section 4s(l)--

Segregation Requirements for Uncleared Swaps).

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Additionally, Dodd-Frank Act section 716 prohibits an insured

depository institution (IDI) from receiving Federal assistance if it is

also an SD that engages in swaps activities that are not covered by the

exclusion in section 716(d).\12\ Under Dodd-Frank Act section 716(c),

an IDI can retain its access to Federal assistance if it transfers

covered activities to a non-IDI affiliate (a Push-Out Affiliate) that

is an SD or MSP, if the affiliate complies with the requirements of

section 716(c), including such requirements as the Commission may

establish.\13\ The Push-Out Affiliate, however, would not have access

to Federal assistance. The Commission did not include in the Proposal

any specific Push-Out Affiliate requirements, and as it stated in the

Proposal, the Commission intends that any Push-Out Affiliate that comes

within the statutory definition of an SD or an MSP be subject to

registration and regulation as an SD or as an MSP, as the case may

be.\14\

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\12\ Specifically, the prohibition against Federal assistance to

Swaps Entities is set forth in Dodd-Frank Act section 716(a), as

follows:

(a) PROHIBITION ON FEDERAL ASSISTANCE.--Notwithstanding any

other provision of law (including regulations), no Federal

assistance may be provided to any swaps entity with respect to any

swap, security-based swap, or other activity of the swaps entity.

Dodd-Frank Act section 716(d) carves out certain swaps

activities of an IDI that is an SD, and therefore a ``swaps

entity,'' from the prohibition against ``Federal assistance.'' In

particular, the prohibition against Federal assistance does not

apply to the extent the IDI SD engages in: (1) Hedging and other

risk-mitigating activities of the IDI; or (2) acting as an SD for

swaps and security-based swaps involving rates (e.g., interest rate

swaps) or reference assets that are permissible investments.

Engaging in non-cleared credit default swaps, however, would subject

an IDI SD to the prohibition against Federal assistance.

\13\ Section 716(c) provides for the Push-Out Affiliate

exception as follows:

(c) AFFILIATES OF INSURED DEPOSITORY INSTITUTIONS.--The

prohibition on Federal assistance contained in subsection (a) does

not apply to and shall not prevent an insured depository institution

from having or establishing an affiliate which is a swaps entity, as

long as such insured depository institution is part of a bank

holding company, or savings and loan holding company, that is

supervised by the Federal Reserve and such swaps entity affiliate

complies with sections 23A and 23B of the Federal Reserve Act and

such other requirements as the Commodity Futures Trading Commission

* * * may determine to be necessary and appropriate.

\14\ See 75 FR 71379, 71380-81. The Commission did not receive

any comments on its statement in the Proposal.

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C. The Proposal

To fulfill the statutory mandates contained in CEA sections 4s(a)

and 4s(b), the Commission proposed amendments to existing Regulations

3.2, 3.4, 3.10, 3.21, 3.30, 3.31 and 3.33 \15\ and new Regulations

23.21, 23.22 and 170.16, to, respectively, establish the registration

process for SDs and MSPs; incorporate the statutory prohibition on SDs

and MSPs permitting an associated person to effect or be involved in

effecting swaps on their behalf; and require SDs and MSPs to become and

remain members of an RFA.

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\15\ Part 3 of the Commission's regulations governs the

registration of intermediaries and certain market participants under

the CEA.

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In the section-by-section analysis of the regulations contained in

the Proposal, the Commission specifically requested comment on whether

it should restrict the definition of an associated person of a Swaps

Entity to a natural person, and how to best implement the statutory

disqualification prohibition in CEA section 4s(b)(6).\16\ Elsewhere,

the Commission requested comment on the concept of a provisional

registration process for SDs and MSPs that would be responsive to a

phased implementation of the Entities Definitional Regulations and the

section 4s Implementing Regulations,\17\ and on the allocation of

responsibilities among the Commission and one or more RFAs attendant to

the oversight of the activities of Swaps Entities generally.\18\

Finally, the Commission requested comment on the application of

extraterritorial issues to the registration requirements it proposed

for Swaps Entities.\19\

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\16\ See 75 FR at 71385.

\17\ See 75 FR at 71381.

\18\ See 75 FR at 71381-82.

\19\ See 75 FR at 71382-71383.

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II. Comments \20\ and Responses

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\20\ The comments the Commission received on the Proposal are

currently available on the Commission's Web site.

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A. In General

The Commission received numerous comments on the Proposal.

Commenters include domestic banks, foreign banks, companies engaged in

various energy businesses, trade and public interest associations

(energy, international banking, securities, and swaps), the National

Futures Association (NFA, currently the only RFA), and both United

States (U.S.) and foreign citizens. The Commission received several

requests for clarification on and enhancements to its contemplated

registration process for Swaps Entities, and the final regulations

adopted today do contain some revisions to the Proposal. In

consideration of the comments received, the Commission is adopting the

Proposal mainly in the form as issued, with specific changes as

discussed below.

B. Restricting Associated Persons to Natural Persons

As stated in the Proposal:

The term ``associated person'' in the context of existing

Commission registrants is not defined in the CEA. That term is

defined in the Commission's regulations. Specifically, Regulation

1.3(aa) provides that ``[T]his term [i.e., associated person] means

any natural person who is associated with'', e.g., [a futures

commission merchant] * * * in any capacity that involves

solicitation or the supervision of any person or persons so engaged

(emphasis added). ``Associated

[[Page 2615]]

person'' has typically referred to a salesperson of a registrant.

Thus, a corporation, partnership or other legal entity has never

been considered an associated person. The use of the term ``natural

person'' in the current associated person definition is intended to

distinguish between the rights and responsibilities of persons

acting as associated persons of a registrant and persons acting as

IBs. However, in the absence of any language in the Dodd-Frank Act

restricting associated persons of swaps entities to natural persons,

the Commission is not proposing such a definition. The Commission

nonetheless requests comment on whether it should by regulation in

fact restrict associated persons of swaps entities to natural

persons.\21\

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\21\ 75 FR at 71385 (footnote omitted).

The comments the Commission received in response to this request

were unanimous in their support of such a restriction. The Commission

is amending Regulation 1.3(aa) to include in the ``associated person''

definition provided for thereunder a natural person associated with an

SD or MSP as a partner, officer, employee or agent (or functionally

similar role) in a capacity that involves the solicitation or

acceptance of swaps, or the supervision of persons so engaged.

Specifically, this definition is now found in new Regulation

1.3(aa)(6).\22\

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\22\ This action supersedes the prior proposal of the Commission

to define the term ``associated person of a swap dealer or major

swap participant'' in a new Regulation 1.3(zz). See 76 FR 33066,

33067 (June 7, 2011). However, for the purpose of adding the

``Exemption from fingerprinting requirement in certain cases''

provided for in Regulation 3.21(c) with respect to outside directors

of an applicant for registration as an SD or MSP, the Commission has

employed the term ``transactions involving `commodity interests,' as

that term is defined in Sec. 1.3(yy)''--which regulation the

Commission has proposed to revise to include ``[a]ny swap as defined

in the Act, the Commission's regulations, a Commission order or

interpretation, or a joint interpretation or order issued by the

Commission and the Securities and Exchange Commission.'' See 76 FR

at 33069, 33086.

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C. Effect of Statutory Disqualification

The Commission proposed the adoption of new Regulation 23.22 to

implement the statutory prohibition in CEA section 4s(b)(6) against an

SD or MSP permitting a person associated with it who is subject to a

statutory disqualification to effect or be involved in effecting swaps

on behalf of the SD or MSP, if the SD or MSP ``knows, or in the

exercise of reasonable care should know, of the statutory

disqualification.'' In the proposed regulation, paragraph (a) defined

the term ``person'' as a shorthand substitute for the statutory term

``associated person of a swap dealer or major swap participant,'' and

paragraph (b) restated the statutory prohibition without exception. The

Commission proposed that an SD or MSP would be responsible for ensuring

that its associated persons are not subject to a statutory

disqualification. The Commission also requested comment on implementing

the statutory prohibition.

The Commission in its request focused on how an SD or MSP could

conduct background checks or otherwise fulfill the requirement to

ensure that persons subject to a statutory disqualification would not

effect or be involved in effecting swaps on its behalf. The sole

comment that the Commission received on this issue expressed the view

that the Commission allow, but not require, Swaps Entities to use NFA

for this vetting purpose.\23\ The Commission agrees with this comment.

It believes that Swaps Entities should be free to work with and through

the service provider of their choice to obtain information as to

whether a prospective associated person is subject to a statutory

disqualification--and NFA could qualify to be such a service provider.

Accordingly, the Commission has not adopted any requirement that Swaps

Entities must, and may only, employ NFA to fulfill their obligation

under CEA section 4s(b)(6). This same commenter suggested that if NFA

performed the background check, ``then it would constitute a safe

harbor for the firm if the individual is subject to a statutory

disqualification but NFA previously notified the firm that the person

is not subject to one.'' The Commission is not authorizing such a safe

harbor.

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\23\ Comment letter from the National Futures Association (Jan.

24, 2011) (NFA Comment Letter).

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One commenter on the implementation of the statutory prohibition

\24\ recommended that, contrary to the Proposal, the Commission adopt

an exception to the association prohibition in Regulation 23.22(b) for

any person listed as a principal or registered as an associated person

of a futures commission merchant (FCM), retail foreign exchange dealer

(RFED), introducing broker (IB), commodity pool operator (CPO), or

commodity trading advisor (CTA)--notwithstanding that such person may

be subject to a statutory disqualification under CEA section 8a(2) or

8a(3).\25\ This commenter noted that, pursuant to the authority the

Commission has delegated to NFA to exercise its registration

responsibilities in the futures markets, NFA has permitted a person to

be listed as a principal or registered as an associated person where

NFA, in its discretion, has determined that the incident giving rise to

a statutory disqualification is insufficiently serious, recent, or

otherwise relevant to evaluating the person's fitness. Where this has

occurred and the person now finds himself to be an associated person of

an SD or MSP, the commenter explained that absent an exception as

provided for in the introductory text of CEA section 4s(b)(6), an

anomalous result would ensue.

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\24\ Id.

\25\ See, e.g., CEA section 4k, which requires the registration

of associated persons of FCMs, IBs, CPOs, and CTAs, and Regulation

3.10(a)(2), which requires each natural person who is a principal of

an applicant for registration to file a fingerprint card.

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The statutory prohibition in CEA section 4s(b)(6) applies ``except

to the extent otherwise specifically provided by rule, regulation, or

order.'' The Commission recognizes that if it did not provide an

exception as suggested, a person could be permitted to direct futures-

related activities or solicit futures-related business with members of

the retail public--e.g., as, respectively, a principal or associated

person of an FCM or CPO--but that same person would be barred from

soliciting, accepting, or otherwise effecting or being involved in

effecting swaps transactions with significantly more sophisticated

clients as an associated person of an SD or MSP. On the other hand,

adopting the requested exception could result in persons to whom the

Dodd-Frank Act affords heightened protections engaging in transactions

marketed by associated persons of an SD or MSP subject to a statutory

disqualification. Even though the Commission did not propose such an

exception, it believes that the commenter's recommendation has merit.

The Commission therefore is adopting the commenter's recommendation

that Regulation 23.22(b) include both the general prohibition against

an SD or MSP permitting any person associated with it who is subject to

a statutory disqualification to effect or be involved in effecting

swaps on behalf of the SD or MSP and an exception to the prohibition

for any person subject to a statutory disqualification who is already

listed as a principal, registered as an associated person of another

registrant (i.e., an FCM, RFED, IB, CPO, CTA, or leverage transaction

merchant (LTM)), or registered as a floor broker (FB) or floor trader

(FT).\26\

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\26\ In addition to the registration categories included in the

comment, the Commission has included in this exception any person

listed as a principal or registered as an associated person of an

LTM. Although there currently is no registered LTM, the CEA and

Commission regulations issued thereunder provide for an LTM

registration category. The Commission also has included in this

exception any person registered as an FB or FT because, as a natural

person and like an associated person of a registrant other than an

SD or MSP, it must submit a Form 8-R in connection with applying for

registration.

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[[Page 2616]]

The same commenter also recommended that the Commission expand

Regulation 3.12(f), or adopt a new regulation, ``to address the

situations in which an individual conducts swaps-related activity on

behalf of more than one Swap Entity or conducts swaps activity on

behalf of a Swap Entity and is also registered as an AP of a different

firm.'' \27\ Regulation 3.12(f) currently provides for the reporting of

dual and multiple associations of a person registered as an associated

person with, and sponsored by, two or more Commission registrants. It

provides, among other things, that each sponsor registrant is jointly

and severally liable for the conduct of that associated person in

specified circumstances. While the Commission agrees with the

commenter's recommendation, it anticipates promptly addressing this

issue in a future rulemaking.

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\27\ NFA Comment Letter.

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D. Phased Implementation \28\

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\28\ See generally 75 FR at 71379, 71381.

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The Commission proposed a provisional registration process for SDs

and MSPs that would take into account, through phased implementation,

the strong likelihood that the Commission would adopt the Section 4s

Implementing Regulations subsequent to issuing the registration process

regulations for SDs and MSPs. As the Commission explained in the

Proposal, phased implementation is aimed at preserving the ``continuity

of the business operations of existing swaps entities, and to avoid

undue market disruption,'' by permitting applicants to continue swaps

activities pending confirmation of initial compliance with the Section

4s Implementing Regulations and notification of registration. In

addition, the final regulations make clear that provisional

registration will be granted upon filing of the application and any

documentation required under the applicable Section 4s Implementing

Regulation--and not upon NFA's review and approval of the

documentation.

Several commenters stressed the need for phased implementation over

extended periods of time so that SDs and MSPs can come into compliance

after evaluating the need, e.g., to restructure operations, re-document

client agreements as a result of new organizational structures or new

regulatory requirements, or upgrade systems. One commenter recommended

that the Commission postpone the effective date of the registration

process rulemaking until sometime after the Commission had adopted all

of the Section 4s Implementing Regulations.\29\ Another commenter

opined that, owing to business continuity concerns, a reasonable

transition period for a firm not previously subject to regulation would

be ``a one year period for such firm to (i) determine whether it is [an

SD or MSP] and (ii) register with the Commission.'' \30\ It suggested a

``roll off'' period that would enable a putative Swaps Entity to fall

outside the SD or MSP definition and thus not be subject to the

requirement to register as an SD or MSP if enough of the Swaps Entity's

legacy swaps expired. The commenter also estimated ``that it might take

up to as much as two years in addition to the suggested one year

registration period for such firms to complete the steps necessary to

comply with all of the requirements necessary for registration as [an

SD or MSP].''

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\29\ Comment letter from the International Swaps and Derivatives

Association, Inc. (Jan. 24, 2011) (ISDA Comment Letter). Another

commenter advocated delaying effectiveness of the Section 4s

Implementing Regulations until at least 60 days after the

registration process regulations and the Entities Definitional

Regulations became effective. Comment letter from the Securities

Industry and Financial Markets Association (Jan. 18, 2011) (SIFMA

Comment Letter).

\30\ Comment letter from Hunton and Williams, LLP, on behalf of

the Working Group of Commercial Energy Firms (Jan. 24, 2011) (WGCEF

Comment Letter).

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The Commission believes that the provisional registration process

adopted today is consistent with the incremental staging requested by

commenters. Thus, the Commission is declining to extend the

effectiveness of any Section 4s Implementing Regulation today.

Moreover, to provide the maximum amount of processing time, so that

applicants for SD or MSP registration can be registered at the earliest

possible date, and in the absence of any comments to the contrary, the

Commission has adopted, as proposed, Regulation 3.10(a)(1)(v), which

permits applicants to begin the registration process in advance of the

effective date of the requirement to register as an SD or MSP.\31\

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\31\ In response to a comment received, the Commission has

clarified in Regulation 3.10(a)(1)(v)(C)(1) when a person may apply

to be registered as an SD or MSP and in Regulations

3.10(a)(1)(v)(C)(2) and 3.10(a)(1)(v)(C)(3) when a person must apply

to be registered as an SM or MSP. See NFA Comment Letter.

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In the Proposal, the Commission provided for provisional

registration with reference to the Dodd-Frank Act's general statutory

effective date of July 16, 2011, and CEA section 4s(b), which requires

the Commission to issue regulations providing for the registration of

Swaps Entities not later than one year after the enactment of the Dodd-

Frank Act, or July 21, 2011. After issuing the Proposal, the Commission

issued effective date clarification of, as well as specific exemptive

relief from compliance with, numerous provisions of the Dodd-Frank Act

(Effective Date Release).\32\ The Effective Date Release explained that

many Dodd-Frank Act provisions require rulemakings to implement them,

including the registration mandate in CEA section 4s(a) and other

Section 4s Requirements, and that pursuant to Dodd-Frank Act section

754, those provisions would not be effective until 60 days after the

publication of those implementing final regulations (e.g., for the

registration mandate, this Federal Register release). Dates

notwithstanding, for the reasons stated in the Proposal and above, the

Commission continues to believe that provisional registration is

appropriate and consistent with the Effective Date Release.\33\

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\32\ See 76 FR 42508, 42509 and 42524 (July 19, 2011).

\33\ So that the text of the registration regulations accurately

reflects the impact of the Effective Date Release on phased

implementation and the provisional registration process, the

Commission is adopting certain definitions, and is incorporating

those definitions into the registration process regulations it is

adopting today. Specifically, new Regulation 3.1(f) defines the term

``Section 4s Implementing Regulation'' to mean ``a regulation the

Commission issues pursuant to section 4s(e), 4s(f), 4s(h), 4s(i),

4s(j), 4s(k), or 4s(l) of the Act,'' and new Regulation 3.1(g)

defines the term ``Swap Definitional Regulation'' to mean ``a

regulation the Commission issues to further define the term `swap

dealer,' `major swap participant' or `swap' in section 1a(49),

1a(33) or 1a(47) of the Act, respectively, pursuant to the Dodd-

Frank Wall Street Reform and Consumer Protection Act.'' These terms

are employed in such registration process regulations as Regulation

3.2(c)(3)(i) (pertaining to provisional registration) and

3.10(a)(1)(v) (pertaining to applying for registration as an SD or

MSP).

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Moreover, in response to a commenter requesting clarification on

provisional registration \34\ and as is reflected in the amended

heading of Regulation 3.2--which now reads ``Registration processing by

the National Futures Association; notification and duration of

registration; provisional registration'' (emphasis supplied)--the

Commission has adopted in new Regulation 3.2(c)(3) the exact terms

pursuant to which NFA will notify an applicant for SD or MSP

registration that it is provisionally registered, the continuing

obligations of a provisional registrant with respect to providing

documentation of compliance with each Section 4s Implementing

[[Page 2617]]

Regulation,\35\ and the terms pursuant to which a provisional

registrant will become registered with the Commission. The Commission

believes this clarification provides necessary specific details on

provisional registration and the transition of a provisional registrant

into a registered SD or MSP.

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\34\ NFA Comment Letter.

\35\ See also Regulation 3.10(a)(1)(v)(D).

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The Commission proposed in Regulation 3.2(c)(3) to require NFA to

notify the applicant for SD or MSP registration ``that it is

provisionally registered pending completion of a fitness review by the

National Futures Association.'' \36\ However, in light of the purpose

of provisional registration, along with the authority the Commission

today intends to delegate to NFA by notice and order (Notice and

Order)--e.g., the authority to conduct proceedings to deny the

registration of an applicant for registration as an SD or MSP--the

Commission has determined not to adopt any such delay with respect to

the notification by NFA to the applicant that it is provisionally

registered.

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\36\ See 75 FR at 71387.

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As proposed and as adopted, Regulation 3.10(a)(1)(i) provides that

application for registration as an SD or MSP will commence with the

filing of a Form 7-R with NFA--which is also how, under Regulation

3.10(a)(1)(i), the registration process commences for applicants for

registration as an FCM, RFED, IB, CPO, CTA, or LTM.\37\ In this regard,

the Commission notes that, as proposed, Regulation 3.10(a)(1)(v)(B)

provides that the commencement of the registration process by an SD or

MSP authorizes the Commission to conduct on-site inspection of the

applicant to determine compliance with the Section 4s Implementing

Regulations applicable to it. The Commission received no comment on the

inspection authority proposed in Regulation 3.10(a)(1)(v)(B).

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\37\ The process for registration as an FB or FT commences with

the filing of a Form 8-R, which reflects the fact that FBs and FTs

are natural persons.

Further with respect to Regulation 3.10, the Commission notes

that paragraphs (a)(1)(iii) and (a)(1)(iv) were inadvertently

dropped from the regulation in connection with the adoption of the

regulatory program of the Commission for RFEDs. See 75 FR 55410,

55424 (Sep. 10, 2010). By this Federal Register release, the

Commission is returning paragraphs (a)(1)(iii) and (a)(1)(iv) to

Regulation 3.10 in the form and text identical to that which existed

prior to this unintentional deletion.

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The Commission also proposed to require applicants for registration

as an SD or MSP ``to demonstrate compliance'' with such of the Section

4s Implementing Regulations in effect at the time of their application.

At the suggestion of a commenter, the Commission has adopted in

Regulation 3.10(a)(1)(v)(A) the requirement that the Form 7-R must be

accompanied by ``such documentation as may be required to demonstrate

compliance'' with each applicable Section 4s Implementing

Regulation.\38\ The Commission believes that the addition of this

phrase brings the registration application requirement for SDs and MSPs

in line with existing requirements for applicants for registration in

other categories--such as applicants for registration as an FCM or IB,

who must accompany their Form 7-R with specified documentation that

demonstrates their compliance with the financial requirements they must

meet to become registered.\39\ And, as proposed and as adopted,

Regulation 3.10(a)(1)(v)(A) provides that for the purpose of this

regulation, ``the term `compliance' includes the term `the ability to

comply,' to the extent that a particular Section 4s Implementing

Regulation may require demonstration of the ability to comply with a

requirement thereunder.'' \40\

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\38\ NFA Comment Letter.

\39\ See Regulation 3.10(a)(1)(ii), which requires applicants

for registration as an FCM or IB to accompany their Form 7-R with a

Form 1-FR-FCM or Form 1-FR-IB, respectively.

\40\ As the Commission has stated previously, it ``will strive

to ensure that current practices will not be unduly disrupted during

the transition to the new regulatory regime.'' Effective Date for

Swap Regulation, 76 FR 42508, 42513 (July 19, 2011). Further, the

Commission has determined that ``the interdependencies of the

various rulemakings will be a consideration in determining the

implementation date for each final rule,'' and that such

determinations will be informed by the Commission's further

consideration of these issues, including public comments. Id.

Thus, for example, to determine with which Section 4s

Implementing Regulations an applicant must demonstrate compliance as

part of the registration process, the applicant should look to the

Section 4s Implementing Regulations themselves to determine

precisely when compliance is required for each. For example, the

Section 4s Implementing Regulations for External Business Conduct

Standards require compliance on the later of 180 days after the

effective date of those regulations or the date on which swap

dealers or major swap participants are required to apply for

registration pursuant to Regulation 3.10.

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Two commenters asked the Commission what documentation is required

of an applicant for SD or MSP registration.\41\ One of these commenters

suggested that the documentation required to demonstrate compliance

with the regulations the Commission adopts to implement the business

conduct standards required by CEA section 4s(h) might consist of

written policies and procedures.\42\ Or, as the Commission notes, the

documentation required to demonstrate compliance with the regulations

the Commission adopts to implement the capital requirements of CEA

section 4s(e) might be a financial form specifically designed for this

purpose. The Commission anticipates that these questions will be

considered in connection with its adoption of the relevant Section 4s

Implementing Regulations.

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\41\ NFA and WGCEF Comment Letters.

\42\ NFA Comment Letter.

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The regulations the Commission proposed and is adopting also

address, in Regulation 3.10(a)(1)(v)(D)(1), the situation where an

applicant for registration as an SD or MSP to whom NFA has provided

notification of provisional registration subsequently fails to

demonstrate compliance with a Section 4s Implementing Regulation--i.e.,

that NFA ``will notify the applicant that its application is deficient,

whereupon the applicant must withdraw its registration application, it

must not engage in any new activity as a swap dealer or major swap

participant, as the case may be, and the applicant shall cease to be

provisionally registered.'' \43\ The Commission proposed a 30-day

period--subject to extension at the discretion of the Commission--

within which the applicant would be required to cure the deficiency.

Upon further consideration, the Commission has adopted in the final

regulation a 90-day cure period.\44\ Further, Regulation

3.10(a)(1)(v)(D)(2) makes clear that the provisions of Regulation

3.10(a)(1)(v)(D)(1) supplement, and are in addition to, the other

activities in which NFA engages under the Act and Commission

regulations in connection with processing an application for

registration as an SD or MSP.\45\

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\43\ This provision was found in proposed Regulation

3.10(a)(1)(v)(D)(2).

\44\ New Regulation 3.10(a)(1)(v)(E), formerly proposed

Regulation 3.10(a)(1)(v)(D)(3), addresses the effect on the

applicable swap documentation of the SD or MSP. Broadly stated, as

proposed and as adopted, this regulation provides that ``unless

specifically reserved in the applicable swap documentation,'' any

withdrawal, cessation or revocation of registration does not affect

the terms of any swap transaction to which the applicant is a party

entered into prior to receiving notice that it is deficient in its

compliance with the applicable Section 4s Implementing Regulation.

See CEA section 22(a)(5), added by Dodd-Frank Act section 739, which

states:

EFFECT ON SWAPS.--Unless specifically reserved in the applicable

swap, neither the enactment of the Wall Street Transparency and

Accountability Act of 2010, nor any requirement under that Act or an

amendment made by that Act, shall constitute a termination event,

force majeure, illegality, increased costs, regulatory change, or

similar event under a swap (including any related credit support

arrangement) that would permit a party to terminate, renegotiate,

modify, amend, or supplement 1 or more transactions under the swap.

\45\ See, e.g., CEA sections 8a(2) and 8a(3) and generally Part

3 of the Commission's regulations.

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[[Page 2618]]

To address comments requesting clarification of the effect of

provisional registration on the general registration process for SDs

and MSPs,\46\ the Commission notes that, as is stated in Part II.E

below, the Commission intends to issue the Notice and Order that

delegates to NFA the authority to perform the full range of

registration functions with respect to applicants for registration, and

persons registered, as an SD or MSP. Currently, persons who apply for

registration must file a Form 7-R, and a Form 8-R and fingerprint card

for each principal of the applicant who is a natural person,\47\

accompanied by such documentation as may be required to demonstrate

compliance with applicable regulatory requirements. NFA subsequently

reviews these materials in advance of granting registration.\48\ This,

then, is the course of action the Commission intends that NFA will

follow upon notification to an applicant for registration as an SD or

MSP that it is provisionally registered.

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\46\ NFA Comment Letter.

\47\ Regulation 3.1 defines the term ``principal'' to mean, when

referring to an applicant for registration, a registrant or a person

required to be registered under the CEA or Commission regulations,

to include officers, directors, and persons who own ten percent or

more of the outstanding shares of the applicant or registrant.

\48\ For example, this is the procedure that NFA follows with

respect to applicants for registration as an FCM or IB, who must

file a Form 7-R, a Form 8-R for each natural person principal, and

specified financial documents.

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In this regard, the Commission expects that NFA will promptly

perform these reviews and, as the Commission intends to state in the

Notice and Order, NFA will be required to perform these registration

processing functions in accordance with the standards established by

the CEA and the Commission's regulations and to follow the same

procedures with respect to recordkeeping, disclosure and tracking of

fitness investigations and adverse action proceedings concerning SDs

and MSPs as it must follow in cases involving other registrants. Thus,

for example, notwithstanding that it has notified an applicant for

registration as an SD or MSP that it is provisionally registered, NFA

may subsequently take an action to deny the registration application

based on the statutory disqualification of one of the applicant's

principals.\49\ In this regard, the Commission notes that the Form 7-R

specifies disclosures that must be made concerning an applicant's

criminal, regulatory and disciplinary histories, and that Form 8-R

additionally requires these disclosures for each of the applicant's

principals.\50\

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\49\ See CEA sections 8a(2) and 8a(3).

\50\ These forms can be accessed through NFA's Web site, http://www.nfa.futures.org/.

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Another commenter requested that the Commission consider separate

sets of regulations for SDs and MSPs.\51\ The Commission has considered

the reasons set forth in the comment and continues to believe that

applicants for SD or MSP registration should be subject to the same

registration requirements for the purpose of commencing the

registration process--i.e., the filing of the Form 7-R by the

applicant.

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\51\ SIFMA Comment Letter.

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E. Allocation of Responsibilities 52 and RFA Membership and

Oversight 53

As part of its efforts to bring SDs and MSPs into the existing

regulatory framework for futures intermediaries, the Commission

proposed Regulation 170.16, which would require each person registered

as an SD or MSP to become and remain a member of an RFA. As the

Commission noted, FCMs are subject to the RFA membership

requirement.\54\ Currently, NFA is the sole RFA. The Commission

received general comments in favor of the membership requirement, that

claimed such a requirement would provide the Commission with

flexibility in overseeing the operations and activities of Swaps

Entities.\55\ After consideration of the foregoing, the Commission is

adopting Regulation 170.16 as proposed.

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\52\ See generally 75 FR 71379 at 71381-82.

\53\ See generally 75 FR at 71385.

\54\ Id.

\55\ Comment letter from the New England Fuel Institute and the

Petroleum Marketers Association of America (Jan. 18, 2011) (NEFI/

PMAA Comment Letter).

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The Commission also requested comment on who should be responsible

for determining initial and ongoing compliance by Swaps Entities with

respect to the Section 4s Implementing Regulations and all other

applicable requirements. The Commission suggested three alternatives:

no delegation to any person, full delegation to NFA (or any association

that may be subsequently registered as a futures association), and

partial delegation to NFA (or any subsequent RFA).\56\

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\56\ The Proposal specifically provided:

Option number one would involve the Commission being directly

responsible for ensuring compliance by swaps entities with all

requirements applicable to them under the CEA and Commission

regulations. Option number two would involve NFA (or any other

association that may subsequently be registered as a futures

association) being responsible for ensuring compliance, subject to

Commission oversight. Option number three would involve certain

compliance oversight activities being performed by the Commission

and others being delegated to NFA (or a subsequently registered

futures association). The Commission requests comment on these

options. In the case of option number three, commenters should

specify which oversight activities should be performed by the

Commission and which should be delegated to, or performed by NFA (or

another registered futures association).

75 FR at 71382.

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One commenter favored no delegation, arguing that ``[t]he

fundamental duty to determine initial and continuing compliance to

qualify for registration is entrusted to and must remain with the

CFTC.'' \57\ This commenter nevertheless acknowledged that confirmation

and oversight of compliance with functions involving reporting and

recordkeeping, daily trading records, swap documentation structure,

designation of chief compliance officer, and filing of annual

compliance reports could be delegated to NFA if the Commission

determined that ``material efficiencies'' could be achieved. But,

confirmation and oversight of compliance with requirements relating to,

among other functions, capital and margin requirements, business

conduct standards and monitoring of trading and risk management were

viewed by this commenter as requiring ``involvement that is focused,

decisive and utterly free from even the appearance of influence brought

to bear by SDs and MSPs''--and therefore, this commenter claimed,

should be retained by the Commission.\58\ Another commenter observed

that until the enactment of the Dodd-Frank Act, NFA had been the self-

regulatory organization (SRO) for the futures industry exclusively, and

advanced that NFA would need to develop new capabilities to serve as an

effective SRO for the swaps industry.\59\ Other commenters favored full

delegation to NFA, based on NFA's historical performance of the

registration and fitness review functions, as well as confirming its

members' compliance with regulatory requirements.\60\

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\57\ Comment letter from Better Markets, Inc. (Jan. 24, 2011)

(Better Markets Comment Letter).

\58\ Id. (emphasis in original).

\59\ ISDA Comment Letter.

\60\ NFA and WGCEF Comment Letters.

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Another commenter requested that if the Commission adopted the

partial delegation model, it clearly define the responsibilities

delegated to NFA, and, in this regard, asked that the Commission

clarify certain of its registration process proposals.\61\ It

recommended that ``the Commission delegate to NFA not only the

authority to process Swap[s] Entity registration applications and

conduct background checks but also to conduct adverse registration

proceedings.'' This

[[Page 2619]]

commenter further requested that, in delegating ``to NFA the

responsibility to maintain records associated with processing Swap

Entity registration applications * * * the Commission specify whether

records filed with and maintained by NFA in connection with any

background check * * * are considered Commission records.''

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\61\ NFA Comment Letter.

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In response to these comments, in recognition of NFA's proven track

record in performing analogous functions for all other Commission

registrants, and consistent with past practice,\62\ including with

respect to the newest registrant category of RFED, the Commission

intends to delegate its full registration authority under the CEA and

its regulations to NFA with respect to applicants for registration, and

registrants, as an SD or MSP. Specifically, by the Notice and Order,

the Commission intends to delegate to NFA the authority to take the

following actions: (1) To process and grant applications for

registration and withdrawals from registration of SDs and MSPs, and to

notify applicants for registration as an SD or MSP of provisional

registration; (2) in connection with processing and granting

applications for registration of SDs and MSPs, to confirm initial

compliance with applicable Section 4s Implementing Regulations; \63\

(3) to conduct proceedings to deny, condition, suspend, restrict or

revoke the registration of any SD or MSP or of any applicant for

registration in either category; and (4) to maintain records regarding

SDs and MSPs, and to serve as the official custodian of those

Commission records.\64\ The Commission intends that the Notice and

Order will further provide that nothing contained therein ``shall

affect the Commission's authority to review the performance by NFA of

Commission registration functions, to adopt and enforce regulations

applicable to SDs and MSPs as Commission registrants, and to conduct

on-site examinations of the operations and activities of SDs and MSPs

as Commission registrants.''

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\62\ The Commission previously has authorized NFA to perform the

full range of registration functions with regard to persons who must

register under the CEA, including granting applications for

registration; enabling withdrawals; and conducting proceedings to

deny, condition, suspend, restrict or revoke the registration of

existing registrants or applicants for registration in each

category. See 48 FR 15940 (Apr. 13, 1983); 48 FR 35158 (Aug. 3,

1983); 48 FR 51809 (Nov. 14, 1983); 49 FR 8226 (Mar. 5, 1984); 49 FR

39593 (Oct. 9, 1984); 50 FR 34885 (Aug. 28, 1985); and 75 FR 55310

(Sep. 10, 2010).

\63\ The Commission intends that applicants for registration may

seek confidential treatment of documentation submitted to

demonstrate initial compliance with the Section 4s Implementing

Regulations in accordance with the procedures set out in Regulation

145.9. This approach is consistent with that taken in other Dodd-

Frank Act rulemakings. See, e.g., Process for Review of Swaps for

Mandatory Clearing, 76 FR 44464, 44474 (July 26, 2011) (adopting

Regulation 39.5(b)(5) which allows a derivatives clearing

organization to request confidential treatment under Regulation

145.9 for portions of its submissions to the Commission).

\64\ The Commission has adopted as proposed an amendment to

Regulation 3.10(d) that subjects SD and MSP registrants to the

requirement applicable to all other persons registered in accordance

with Regulation 3.10 to annually review and update registration

information with NFA. However, in light of its intent to delegate

its full registration authority to NFA, the Commission has not

adopted as proposed a further amendment to Regulation 3.10(d) that

would have required SD and MSP registrants to also file this

updating registration information with the Commission.

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The Commission recognizes that the operations, activities and

transactions engaged in by SDs and MSPs have not previously been

subject to an extensive regulatory framework. Ideally, and as one

commenter suggested, the Commission would retain direct responsibility,

at least initially, for confirming compliance with the Section 4s

Implementing Regulations.\65\ However, in order to best allocate its

resources, the Commission has determined to delegate to NFA the

responsibility for the initial determination that an applicant for

registration as an SD or MSP is in compliance with the Section 4s

Implementing Regulations.

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\65\ Better Markets Comment Letter.

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Going forward, the Commission expects that NFA, as it has for its

other members in connection with the discharge of its RFA

responsibilities under CEA section 17, will adopt rules for its SD and

MSP members that are the same as, or more stringent than, the Section

4s Implementing Regulations, and that NFA will engage in active

oversight of its SD and MSP members to monitor and ensure compliance

with those rules.\66\ In this regard, the Commission notes that CEA

section 17(j) requires an RFA--such as NFA--to submit to the Commission

any new change in or addition to its rules and that the RFA--

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\66\ See, e.g., NFA Compliance Rule 2-13 for its member CPOs and

CTAs, wherein NFA has adopted in large part the Part 4 regulations

of the Commission, which govern the operations and activities of

these categories of registrant. See also NFA Financial Requirements

Rules for its member FCMs, RFEDs and IBs, whereby NFA has adopted

rules that are the same as, or more stringent than, the financial

requirements the Commission has adopted for these categories of

registrant.

may make such rules effective ten days after receipt of such

submission by the Commission unless, within the ten-day period, the

registered futures association requests review and approval thereof

by the Commission or the Commission notifies such registered futures

association in writing of its determination to review such rules for

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approval.

As for the standard of review to which RFA rules are subject,

section 17(j) further provides that:

The Commission shall approve such rules if such rules are

determined by the Commission to be consistent with the requirements

of this section and not otherwise in violation of this Act or the

regulations issued pursuant to this Act, and the Commission shall

disapprove, after appropriate notice and opportunity for hearing,

any such rule which the Commission determines at any time to be

inconsistent with the requirements of this section or in violation

of this Act or the regulations issued pursuant to this Act.\67\

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\67\ Section 17(j) further provides:

If the Commission does not approve or institute disapproval

proceedings with respect to any rule within one hundred and eighty

days after receipt or within such longer period of time as the [RFA]

may agree to, or if the Commission does not conclude a disapproval

proceeding with respect to any rule within one year after receipt or

within such longer period as the [RFA] may agree to, such rule may

be made effective by the [RFA] until such time as the Commission

disapproves such rule * * *.

However, and consistent with the Notice and Order the Commission

intends to issue, adoption by the Commission of Regulation 170.16

requiring membership in an RFA by SD and MSP registrants and adoption

by NFA of rules for its SD and MSP members does not affect the

authority of the Commission to adopt and enforce regulations applicable

to SDs and MSPs as Commission registrants and to conduct on-site

examinations of the operations and activities of SDs and MSPs as

Commission registrants.

The Commission has, in the past, issued written guidance to NFA

regarding the exercise of delegated authority.\68\ To the extent that a

Section 4s Implementing Regulation is not specific in this regard, the

Commission anticipates providing written guidance to NFA on the

criteria for, and manner of, determining that an applicant for SD or

MSP registration has demonstrated its initial compliance with the

regulation.

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\68\ See Letter to Robert K. Wilmouth, President, NFA, from Jean

A. Webb, Secretary of the Commission, dated Dec. 4, 1997; Letter to

Robert K. Wilmouth, President, NFA, from Jean A. Webb, Secretary of

the Commission, dated Apr. 13, 2000. These letters are included in

Appendix A to Part 3 of the Commission's regulations.

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F. Extraterritoriality

As is noted above, in the Proposal, the Commission requested

comment on the extraterritorial application of the SD and MSP

registration requirements. The Commission has determined to limit this

final rulemaking to the process of registration. Issues relating to

which

[[Page 2620]]

entities are SDs or MSPs and the substantive requirements applicable to

them, including the extraterritorial application of such substantive

requirements, are beyond the scope of this rulemaking.

III. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (Reg Flex Act) requires federal

agencies to consider the impact of its rules on ``small entities.''

\69\ A regulatory flexibility analysis or certification typically is

required for ``any rule for which the agency publishes a general notice

of proposed rulemaking pursuant to'' the notice-and-comment provisions

of the Administrative Procedure Act, 5 U.S.C. 553(b).\70\ As the

Commission stated in the Proposal, it previously has established that

certain entities subject to its jurisdiction are not small entities for

purposes of complying with the Reg Flex Act. However, as the Commission

also noted in the Proposal, SDs and MSPs are new categories of

registrant for which the Commission had not previously addressed the

question of whether such persons are small entities.\71\

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\69\ 5 U.S.C. 601 et seq.

\70\ 5 U.S.C. 601(2), 603, 604 and 605.

\71\ 75 FR 71379, 71385.

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In this regard, the Commission explained in the Proposal that it

previously had determined that FCMs should not be considered to be

small entities for purposes of the Reg Flex Act, based, in part, upon

FCMs' obligation to meet the minimum financial requirements established

by the Commission to enhance the protection of customers' segregated

funds and protect the financial condition of FCMs generally.\72\ Like

FCMs, SDs will be subject to minimum capital requirements, and are

expected to be comprised of large firms. The Commission is statutorily

required to exempt from designation as an SD those entities that engage

in a de minimis quantity of swap dealing in connection with

transactions with or on behalf of customers.\73\ Accordingly, for

purposes of the Reg Flex Act for the Proposal and future rulemakings,

the Commission proposed that SDs should not be considered small

entities for essentially the same reasons that it had previously

determined FCMs not to be small entities.\74\

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\72\ 47 FR 18618 (Apr. 30, 1982).

\73\ See CEA section 1a(49)(D).

\74\ 75 FR at 71385.

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The Commission further explained that it had also previously

determined that large traders are not small entities for Reg Flex Act

purposes, with the Commission considering the size of a trader's

position to be the only appropriate test for the purpose of large

trader reporting.\75\ The Commission then noted that ``MSPs maintain

substantial positions in swaps, creating substantial counterparty

exposure that could have serious adverse effects on the financial

stability of the United States banking system or financial markets.''

\76\ Accordingly, for purposes of the Reg Flex Act for the Proposal and

future rulemakings, the Commission also proposed that MSPs should not

be considered to be small entities for essentially the same reasons

that it previously had determined large traders not to be small

entities.\77\

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\75\ Id.

\76\ Id.

\77\ Id. at 71385-86.

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In response to the Proposal, one commenter, representing a number

of market participants, submitted a comment related to the Reg Flex

Act, stating that ``[e]ach of the complex and interrelated regulations

currently being proposed by the Commission has both an individual, and

a cumulative, effect on [certain] small entities,'' and that ``the vast

majority of [our] members meet the definition of `small entities' under

the Small Business Regulatory Enforcement Fairness Act.''.\78\ Thus,

the commenter concluded that the Commission should conduct a regulatory

flexibility analysis for each of its rulemakings under the Dodd-Frank

Act, including this rulemaking applicable to the registration process

for Swaps Entities.

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\78\ Comment letter from the National Rural Electric Cooperative

Association, American Public Power Association, Large Public Power

Council, Edison Electric Institute, and Electric Power Supply

Association (June 3, 2011).

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This commenter did not provide any information on how the Proposal

may have a significant economic effect on a substantial number of small

entities. Nonetheless, the Commission has reevaluated this rulemaking

in light of the statements made to it by this commenter. After further

consideration of those statements, the Commission has again determined

that this final rulemaking, which is applicable to SDs and MSPs, will

not have a significant economic effect on a substantial number of small

businesses.

In terms of affecting a substantial number of small entities, as is

noted above, the Commission is statutorily required to exempt from

designation as an SD those entities that engage in a de minimis

quantity of swaps dealing. Thus, these exempted entities will not be

required to register as an SD. Moreover, the Commission does not expect

that the small entities identified by the commenter will be subject to

registration with the Commission as an MSP.

In terms of having a significant economic effect, in the experience

of the Commission, complying with the registration process regulations

has not had a significant economic effect on a substantial number of

small entities. Notably, Regulation 3.10, containing the same

registration requirements as those being issued today for SDs and MSPs,

has been applicable to IBs and CTAs \79\ without any known significant

economic effects since 1983.\80\ Most recently, in connection with its

adoption of substantively similar registration regulations for RFEDs,

the Commission stated that, in light of Congressionally-mandated

capital requirements, it would not define RFEDs as small entities for

Reg Flex Act purposes.\81\ There is no indication, from the

Commission's experience or the information presented by the commenter,

that the registration process requirements for Swaps Entities would

have an effect on small entities that would be subject to those

requirements, if any, that would be different than the effect the same

registration process requirements have had historically on other

Commission registrants that also may be small.

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\79\ The Commission historically has evaluated on a case-by-case

basis the economic impact of a particular regulatory proposal on IBs

and CTAs to determine whether the regulatory proposal will have a

significant economic effect on a substantial number of small

entities. See, e.g., 76 FR 33066, 33079 (June 7, 2011) (initial

regulatory flexibility analysis conducted with respect to the

possible economic effects of a proposal to require IBs, among

others, to maintain records of certain oral communications).

\80\ See 48 FR 35248 (Aug. 3, 1983).

\81\ See 75 FR 55410, 55416 (Sep. 10, 2010). CEA section 2(c)(2)

generally requires an RFED to maintain adjusted net capital equal to

or in excess of $20,000.000.

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Accordingly, for the reasons stated in the Proposal and the

additional rationale provided above, the Commission continues to

believe that the SD and MSP registration process rulemaking will not

have a significant economic impact on a substantial number of small

entities. Therefore, the Chairman, on behalf of the Commission, hereby

certifies, pursuant to 5 U.S.C. 605(b), that the regulations being

published today by this Federal Register release will not have a

significant economic impact on a substantial number of small entities.

[[Page 2621]]

B. PaperworkReduction Act

1. Introduction

The Paperwork Reduction Act (PRA) \82\ imposes certain requirements

on federal agencies in connection with their conducting or sponsoring

any collection of information as defined by the PRA. Certain provisions

of these regulations will result in new collection of information

requirements within the meaning of the PRA. An agency may not conduct

or sponsor, and a person is not required to respond to, a collection of

information unless it displays a currently valid control number.

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\82\ 44 U.S.C. 3501 et seq.

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The Commission submitted the Proposal to the Office of Management

and Budget (OMB) for review in accordance with 44 U.S.C. 3507(d) and 5

CFR 1320.11. The Commission requested that OMB approve and assign a new

control number for the collection of information covered by the

Proposal. The title for this collection of information is

``Registration of Swap Dealers and Major Swap Participants.'' OMB has

assigned OMB control number 3038-0072 to the Information Collection

Request (ICR) in connection with the Proposal, but OMB has not yet

approved the ICR. The OMB control number will not appear in the active

inventory until OMB grants approval.

Under the regulations that the Commission is adopting today, Swaps

Entities that must register with the Commission will be obligated to

file, periodically review and update certain registration forms.

Responses to the collection of information contained within these final

regulations are mandatory, and the Commission will protect proprietary

information according to the Freedom of Information Act \83\ and Part

145 of the Commission's regulations, ``Commission Records and

Information.'' In addition, the Commission emphasizes that CEA section

8(a)(1) strictly prohibits the Commission, unless specifically

authorized by the CEA, from ``publish[ing] 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 pursuant to the Privacy Act of 1974.\84\

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\83\ 5 U.S.C. 552.

\84\ 5 U.S.C. 552a.

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In the Proposal, the Commission estimated that there would be 300

``Respondents/Affected Entities'' (respondents) and that the

``respondent burden for this collection is estimated to average 0.5

hours per response for the Form 7-R; 0.4 hours per response for the

Form 8-R; 3 minutes per response for the Form 7-W; 6 minutes per

response for the Form 8-T; and 3 minutes per response for the Form 3-

R.'' \85\ As is discussed previously in this Federal Register release,

the Commission has modified from the Proposal certain of the

regulations it is adopting today. The Commission believes that none of

these modifications affect the burden estimates associated with the

information collection that the Commission proposed. In response to

comments received, the Commission has determined to increase the

respondent burden hours estimated for Swaps Entities for each of the

forms referenced above. The Commission is also decreasing the number of

respondents to 125 from the Proposal's estimate of 300. The following

sections address and respond to comments received on the proposed

burden estimates, explain the Commission's reduction of the estimated

number of respondents to this collection, discuss the registration fees

included in this rulemaking, and list the revised burden hour estimates

associated with this information collection and the final regulations

adopted today.

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\85\ 75 FR at 71386.

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2. Responses to Comments Received

The Commission invited the public and other federal agencies to

comment on any aspect of the reporting and recordkeeping burdens

discussed above. Pursuant to 44 U.S.C. 3506(c)(2)(B), the Commission

solicited comments in order to: (1) Evaluate whether the proposed

collection of information is necessary for the proper performance of

the functions of the Commission, including whether the information will

have practical utility; (2) evaluate the accuracy of the Commission's

estimate of the burden of the proposed collection of information; (3)

determine whether there are ways to enhance the quality, utility, and

clarity of the information to be collected; and (4) minimize the burden

of the collection of information on those who are able to respond,

including through the use of automated collection techniques or other

forms of information technology.

OMB commented on the ICR in accordance with 5 CFR 1320.11(c),

questioning the burden hours estimated, which appeared to OMB to be

low. OMB stated that the Commission should consider the comments it

received on the Proposal, if any, to determine if the burden hours

estimated should be revised.

The Commission received one other comment on its PRA discussion in

the Proposal. This commenter stated in its letter that, ``[a]lthough

the Paperwork Reduction Act section of the release accompanying the

Proposed Regulations (the `Release') suggests that it will merely take

a matter of minutes for Swaps Entities to complete the forms required

by the Proposed Regulations, we are dubious that this is accurate.''

\86\ This commenter did not explain why it doubted the accuracy of the

estimates, nor did it suggest alternative burden estimates.

Nonetheless, the Commission has reviewed its PRA estimates in light of

this comment, as well as the comment provided by OMB. For the following

reasons, the Commission has determined to revise the burden hour

estimates in the Proposal.

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\86\ ISDA Comment Letter.

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Generally, these forms request only the information about an

applicant and its principals necessary for the Commission to

appropriately exercise its statutory registration and compliance

oversight functions with respect to them. This information generally

includes the names, addresses, location of records, regulatory and

disciplinary histories, and other similarly straightforward matters--

all of which should be in the possession of the applicant and readily

available for the applicant to provide. However, some Swaps Entities

may be unfamiliar with the current registration process and the Forms

7-R and 8-R that they must complete in order to apply for registration

as an SD or MSP.

The PRA estimates provided for these forms are averages that do not

necessarily reflect the actual time to be expended by each and every

person to complete the forms. The Commission's estimates do not account

significantly for the amount of time it would take to complete the

regulatory and disciplinary history sections of Forms 7-R and 8-R,

which impose the greatest burden on persons completing the forms where

the applicant SD or MSP (including a principal thereof) has an

extensive criminal or disciplinary history. The Commission believes

such SDs and MSPs will generally not be applying for registration in

the first place because they will likely be disqualified from

registration pursuant to CEA section 8a(2) or 8a(3). In addition, these

forms will be completed in an online, user-friendly process developed

by NFA, the Commission's delegee pursuant to CEA section 8a(10), which

process currently is used by all

[[Page 2622]]

other applicants for registration with the Commission.

Moreover, in proposing and adopting regulations applicable to the

registration of Swaps Entities, the Commission has made every effort to

establish a process that is minimally disruptive to the swap markets

and minimally burdensome to Swaps Entities. In so doing, and as it

proposed, the Commission is incorporating the registration process for

Swaps Entities into the existing regulatory scheme for all other

Commission registrants under Part 3--as opposed to constructing a

fundamentally new registration structure for Swaps Entities. While

current registrants may be familiar with this scheme, some Swaps

Entities will not have previously applied for registration with the

Commission, and the revised burden estimates take the potential

unfamiliarity of new applicants for registration into account.

The forms that Swaps Entities will be required to complete are

virtually identical to those forms that other Commission registrants

must currently complete, including RFEDs, who became subject to the

Commission's registration requirements in 2010. There is, however, an

additional requirement to which Swaps Entities will be subject in

connection with completing the Form 7-R. CEA section 4s(b)(6) prohibits

a Swaps Entity, except to the extent otherwise provided by rule,

regulation or order,\87\ from permitting a person associated with it

who is subject to a statutory disqualification to effect or be involved

in effecting swaps on the Swaps Entity's behalf, if the Swaps Entity

``knew, or in the exercise of reasonable care should have known, of the

statutory disqualification.'' \88\ Form 7-R incorporates CEA section

4s(b)(6) into the application for registration as an SD or MSP by

explicitly quoting the statutory language and requiring the applicant

to certify that ``the applicant is and shall remain in compliance with

section 4s(b)(6) of the Act.'' Because of the additional time required

to gather such background information on a Swaps Entity's associated

persons as is necessary to make that certification, the Commission

believes an increase in the time required for the Swaps Entity to

complete the Form 7-R is warranted.

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\87\ See, e.g., infra Regulation 23.22(b).

\88\ See supra pt. II.C for a detailed discussion of the

prohibition in CEA section 4s(b)(6).

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As part of the registration process, the regulations being adopted

today require Swaps Entities to demonstrate initial compliance with the

Section 4s Implementing Regulations as the Commission adopts these

regulations in order to obtain registration. However, because the

Section 4s Implementing Regulations are not yet final, and because they

will be phased in over time after the Commission adopts the

registration process regulations today, the Commission is unable to

estimate burden hours in connection with producing or collecting the

documentation required to demonstrate compliance with the Section 4s

Implementing Regulations. Consequently, the PRA estimates for this

registration process rulemaking only include time to be expended by

applicants' and registrants' personnel to complete the forms, and do

not include time to be expended to collect, produce or otherwise

develop the documentation required to demonstrate compliance with the

Section 4s Implementing Regulations. The Commission has estimated the

burden hours associated with information collections in connection with

the Section 4s Implementing Regulations in the rulemakings proposing

those regulations, and those burden hours need not be replicated here.

3. Reduction of the Estimated Number of Respondents

In the Proposal, the Commission took ``a conservative approach'' to

calculating the burden hours of this information collection by

estimating that as many as 300 persons would come within the SD or MSP

definition and, thus, would be subject to registration with the

Commission.\89\ Since the Proposal's publication in November 2010, the

Commission has met with industry participants and trade groups,

discussed extensively the universe of potential registrants with NFA,

and reviewed public information about potential SDs active in the

market and certain trade groups. Over time, and as the Commission has

gathered more information on the swap market and its participants, the

estimate of the number of SDs and MSPs has decreased. In its FY 2012

budget drafted in February 2011, the Commission estimated that 140 SDs

might register with the Commission.\90\ After recently receiving

additional specific information from NFA on the regulatory program it

is developing for SDs and MSPs,\91\ however, the Commission now

believes that approximately 125 persons will come within the SD or MSP

definition and, thus, be subject to registration with the

Commission.\92\

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\89\ 75 FR at 71386.

\90\ CFTC, President's Budget and Performance Plan Fiscal Year

2010, p. 13-14 (Feb. 2011), available at http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/cftcbudget2012.pdf. The

estimated 140 SDs includes ``[a]pproximately 80 global and regional

banks currently known to offer swaps in the United States;''

``[a]pproximately 40 non-bank swap dealers currently offering

commodity and other swaps;'' and ``[a]pproximately 20 new potential

market makers that wish to become swap dealers.'' Id.

\91\ Letter from Thomas W. Sexton, Senior Vice President and

General Counsel, NFA, to Gary Barnett, Director, Division of Swap

Dealer and Intermediary Oversight, CFTC (Oct. 20, 2011) (NFA Cost

Estimates Letter).

\92\ The number of MSPs is estimated to be quite small, at six

or fewer.

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4. Registration Fees

The Commission is permitted to collect registration fees under CEA

section 8a(1). These registration fees are established by NFA as the

Commission's delegee under CEA section 8a(10). NFA has not yet adopted,

and the Commission has not yet approved, an NFA rule setting forth

registration fees for SDs and MSPs, although NFA currently estimates

that such Swaps Entity registration fee will be $15,000.\93\ At such

time as the Section 4s Implementing Regulations are finalized and the

NFA registration fees established under CEA section 8a(1) are approved,

the Commission will revise the information collection for which it has

sought approval.

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\93\ See infra pt. III.C (discussing the costs and benefits of

this rulemaking).

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5. Revised Burden Hour Estimates for the Information Collection

For the reasons outlined above, the Commission has determined to

revise the burden hour estimates for this information collection as

follows. The burden associated with the new regulations implementing

the registration process for SDs and MSPs is estimated to be 629 hours,

assuming 125 respondents, which will result from: (1) Application for

registration by SDs and MSPs and submission of required information on

behalf of their respective principals; (2) initially, no withdrawals

from registration by SDs or MSPs and a relatively small decrease in the

number of their respective principals; and (3) initially, no reported

corrections. Burden means the total time, effort, or financial

resources expended by persons to generate, maintain, retain, disclose

or provide information to or for a federal agency.

The respondent burden for this collection is estimated to average 1

hour per response for the Form 7-R; 0.8 hours per response for the Form

8-R; 0.1 hours per response for the Form 7-W; 0.2 hours per response

for the Form 8-T; and 0.1 hours per response for the Form 3-R. These

estimates include the time needed: To review instructions; to

[[Page 2623]]

develop, acquire, install, and utilize technology and systems for the

purposes of collecting, validating, and verifying information,

processing and maintaining information, and disclosing and providing

information; to adjust the existing ways to comply with any previously

applicable instructions and requirements; to train personnel to be able

to respond to a collection of information; and to transmit or otherwise

disclose the information.

Form 7-R

Respondents/Affected Entities: 125.

Estimated number of responses: 125.

Estimated total annual burden on respondents: 1 hour.

Frequency of collection: On occasion and annually.

Burden statement: 125 respondents x 1 hour = 125 Burden Hours.

Form 8-R

Respondents/Affected Entities: 5 principals per each of 125 SDs and

MSPs.

Estimated number of responses: 625.

Estimated total annual burden on respondents: 0.8 hours.

Frequency of collection: On occasion.

Burden statement: 625 respondents x 0.8 hours = 500 Burden Hours.

Form 8-T

Respondents/Affected Entities: 1 principal per each of 20 SDs and

MSPs.

Estimated number of responses: 20.

Estimated total annual burden on respondents: 0.2 hours.

Frequency of collection: On occasion.

Burden statement: 20 respondents x 0.2 hours = 4 Burden Hours.

C. Considerations of Costs and Benefits of the Rulemaking

This final rulemaking implements provisions of the CEA, as amended

by the Dodd-Frank Act, mandating the registration of Swaps Entities.

CEA section 4s(a) makes it unlawful for a person to act as an SD or MSP

unless it is registered with the Commission. CEA section 4s(b) requires

an SD or MSP to apply for registration in accordance with such form and

manner as the Commission may prescribe. To effectuate the Congressional

directive, this final rulemaking: Details the registration process for

SDs and MSPs; requires Swaps Entities to become and remain members of

an RFA; and implements the prohibition against a Swaps Entity

permitting a statutorily disqualified associated person from effecting

or being involved in effecting swaps on behalf of the Swaps Entity.

CEA section 15(a) requires the Commission to consider the costs and

benefits of its actions before promulgating regulations. The Commission

must evaluate costs and benefits in light of five broad areas of market

and public concern: (1) Protection of market participants and the

public; (2) efficiency, competitiveness, and financial integrity of

futures markets; (3) price discovery; (4) sound risk management

practices; and (5) other public interest considerations.

Before adopting these registration process regulations for Swaps

Entities, the Commission sought public comment on the Proposal,

including comment on the costs and benefits of the Proposal.\94\ The

Commission has considered all comments, and, in particular, reasonable

alternatives suggested by commenters. In some instances, for the

reasons discussed above, the Commission has adopted such alternatives

or modifications to the proposed regulations where, in the Commission's

judgment, the alternative or modification accomplishes the same

regulatory objective in a more effective manner. The Commission also

specifically invited commenters to submit ``any data or other

information that they may have quantifying or qualifying the costs and

benefits of the proposal with their comment letters.'' \95\ Other than

estimates of registration fees and annual membership dues from NFA

(currently the only RFA),\96\ the Commission did not receive any

information quantifying or qualifying the costs or benefits of the

proposed regulations relating to the registration process for Swaps

Entities. The Commission did, however, receive general comments on the

cost-benefit considerations of the rulemaking. These are addressed in

the discussion below.

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\94\ See 75 FR 71379 at 71386-87.

\95\ Id.

\96\ NFA Cost Estimates Letter.

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1. Benefits of SD and MSP Registration Regulations

The Commission believes that the benefits of this final rulemaking

are considerable even if not quantifiable. Registration, as mandated by

Congress in the Dodd-Frank Act, will enable the Commission to increase

market integrity and protect market participants and the public by

identifying the universe of SDs and MSPs subject to heightened

regulatory requirements and oversight in connection with their swaps

activities. This rulemaking identifies the process to commence

registration by an SD or MSP, specifies the applicable registration

forms, and explains how SDs and MSPs should apply for registration. The

Commission believes that this final rulemaking's specification of a

registration process for SDs and MSPs administered by an RFA leverages

the RFA's existing expertise and economies of scale and scope.

Further, and as is discussed above,\97\ the Commission is

exercising its discretion under the Dodd-Frank Act to provide for an

exception in Regulation 23.22 from the prohibition against an SD or MSP

permitting a person associated with it who is subject to a statutory

disqualification to effect or be involved in effecting swaps on its

behalf. In taking this action, the Commission is limiting the burden on

SDs and MSPs with respect to their vetting of potential associated

persons.

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\97\ See supra pt. II.C.

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2. Costs of SD and MSP Registration Regulations

The Commission has identified and considered several costs

associated with this rulemaking. First, an SD or MSP must pay fees to

register with the Commission through NFA. Second, because this

rulemaking requires a registrant to become and remain a member of an

RFA--and NFA is currently the only RFA--Swaps Entities will incur the

costs of annual NFA membership dues. Third, NFA is expected to incur

expenses for executing the anticipated delegated registration process

function on the Commission's behalf and for monitoring compliance by

its SD and MSP members with NFA rules.\98\ Fourth, Swaps Entities will

incur costs when completing various CFTC registration forms that must

be filed with NFA.

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\98\ The NFA Cost Estimates Letter explains that NFA will incur

direct and indirect costs associated with employing staff to perform

this review and confirmation, and that the registration fee estimate

of $15,000 has been designed to offset a portion of the costs that

NFA will incur in this regard.

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The Commission is obligated to estimate the burden of and provide

supporting statements for any collection of information it seeks to

establish under considerations contained in the PRA, and seek approval

of those requirements from OMB. Therefore, the estimated burden and

support of the collection of information in this rulemaking, as well as

consideration of the comments thereto, are discussed in the PRA section

of this rulemaking as required by that statute.\99\ Registrants are

required to update these forms when the information provided therein

changes and to confirm these changes annually.

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\99\ See supra pt. III.B.

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[[Page 2624]]

a. Fees and Dues

Based on current estimates from NFA, the Commission believes that

SDs and MSPs will incur the following registration fees: (a) $15,000

per SD or MSP registration application, which will include the initial

determination by NFA of compliance with the Section 4s Implementing

Regulations; \100\ and (b) $85 per person for processing fingerprints

and background information for principals.\101\

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\100\ The Commission estimated $500 for the SD/MSP registration

application fee in the Proposal, based on information NFA provided

to staff upon request in connection with the development of the

Proposal. See 75 FR at 71387. Since then, NFA significantly altered

the registration fees it estimates it will be charging SD and MSP

applicants, due to NFA's expected review and confirmation of an SD

or MSP's initial compliance with each Section 4s Implementing

Regulation prior to the SD or MSP becoming registered. NFA Cost

Estimates Letter.

\101\ This amount is unchanged from the Proposal. See 75 FR at

71387.

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Based on current estimates from NFA, the Commission believes that

SDs and MSPs will incur annual NFA membership dues ranging from

$125,000 to $1,000,000 per member, based upon the size and complexity

of the firm's swap business.\102\ The increase in the estimate of NFA

membership dues is driven by two factors: First, the decision by NFA to

recover costs for oversight of its SD and MSP members primarily through

a membership dues structure, rather than assessing a fee on swap

transactions similar to the fee NFA imposes on futures transactions;

and second, NFA's estimate of the annual cost of its regulatory program

for Swaps Entities when that program is fully staffed and operational.

It is possible that NFA's estimates will change over time.

Additionally, rules relating to membership dues must be approved by

various NFA authorities, and, in accordance with CEA section 17(j),

must be approved by the Commission. The Commission expects that NFA

will submit these rules for full review and approval.\103\

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\102\ NFA Cost Estimates Letter.

\103\ Id. (stating that NFA will submit these proposed initial

registration fees, and membership dues to the Commission for full

review and approval).

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b. NFA Expenses

Concurrently with the adoption of these regulations, the Commission

intends to issue the Notice and Order, whereby it will delegate to an

RFA--i.e., NFA--its authority to register SDs and MSPs. Included in

this delegation will be the authority to determine an applicant's

fitness for registration and initial compliance with the Section 4s

Implementing Regulations as they relate to the applicant. Also, the

Commission is adopting proposed Regulation 170.16 to require that SDs

and MSPs become and remain members of an RFA. As is stated above, NFA

currently is the sole RFA.

Consistent with the current regulatory practice for Commission

registrants who are NFA members, NFA will be responsible for monitoring

compliance with NFA rules applicable to its members who are SDs and

MSPs.\104\ NFA therefore will incur overhead and direct costs on a

continuing basis attributable to oversight activities to confirm SD and

MSP compliance with applicable NFA rules in addition to performing

registration processing functions.\105\ NFA's currently estimated

$15,000 application fee for registering SDs and MSPs does not include

charges related to ongoing NFA oversight of its SD and MSP members for

compliance with NFA rules--which, as is stated above, NFA expects to

recover through the dues it will charge its SD and MSP members.

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\104\ These NFA requirements will be as strict as or stricter

than the Section 4s Implementing Regulations, and like registration

fees and membership dues, will be subject to Commission review and

approval pursuant to CEA section 17(j). See supra pt. II.E.

\105\ For futures transactions, NFA collects a fee per

transaction. Initially, NFA expected to collect a fee per

transaction from its SD and MSP members to defray the costs of

overseeing their operations and activities, an approach it is no

longer pursuing. NFA Cost Estimates Letter.

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NFA's regulatory program for the oversight of Swaps Entities will

entail significant costs. Based on an assumption of 125 SD and MSP

members, NFA estimates that the annual cost of this regulatory program

when it is fully staffed and operational in approximately three years

will be approximately $35-$45 million.\106\ NFA has stated that ``[i]n

order to generate at least $35 million in revenue, [NFA has]

preliminarily calculated that membership dues for SDs and MSPs could

range between $125,000-$1 million per Member firm based upon the size

and complexity of the firm's swaps business.''\107\

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\106\ NFA Cost Estimates Letter. In the Proposal, the Commission

estimated for PRA purposes that as many as 250 SDs and 50 MSPs may

register. See 75 FR at 71386. Should there be more than 125 Swaps

Entities, NFA's total annual costs for the regulatory program may

exceed this estimate. NFA Cost Estimates Letter.

\107\ NFA Cost Estimates Letter.

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By delegating the authority to perform the registration functions

for SDs and MSPs to an RFA, the Commission will avoid the expense of

establishing a new registration program within the agency and will

provide a familiar and efficient means of implementing the statutory

requirements for the registration of SDs and MSPs.\108\ Some SDs and

MSPs will have previous experience with the registration process for

futures intermediaries. The Commission believes that by delegating the

registration process to an established RFA that already has similar

oversight responsibilities for other persons registered with the

Commission, the regulatory objectives of the Dodd-Frank Act can be

achieved in a more cost-effective manner. The Commission anticipates

that delegating the authority to perform registration functions for SDs

and MSPs to an RFA will avoid the costs associated with duplicating the

systems, processes, and personnel of the RFA.\109\

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\108\ One commenter wrote that ``given the budgetary uncertainty

faced by the Commission'' the delegation to RFA-registration model

provides the Commission with ``flexibility'' in its oversight of SDs

and MSPs. NEFI/PMAA Comment Letter.

\109\ One commenter stated that SROs reduce the costs of

regulation to the government and the taxpayer. ISDA Comment Letter.

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Thus, the Commission believes that it will be more cost-effective

for NFA to augment its current systems and processes to accommodate the

new SD and MSP registrants than it would be for the Commission to build

the same capabilities. The Commission further believes that the

delegation of the authority to process SD and MSP registration

applications to an RFA, with the imposition of fees on those persons

who must register, is a prudent and effective approach. This model,

currently employed in the futures context, has worked successfully for

Commission registrants and the Commission for many years. While one of

the commenters on the Proposal expressed concern about NFA's current

lack of swaps expertise, the Commission notes NFA's recent efforts to

develop expertise in this area (e.g., forming a Swap Dealer Advisory

Committee in May 2010 \110\) and, accordingly, does not believe this

concern merits a different conclusion.

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\110\ NFA Cost Estimates Letter.

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c. Registration of Foreign Swaps Entities

The Commission received many comments on the Proposal from entities

such as foreign banks and derivatives dealers arguing that several of

the Commission's proposed regulations, taken together, would require

massive and potentially expensive internal reorganizations to comply

with the new swaps regulatory regime. Some commenters predicted adverse

consequences to the U.S. swaps markets if foreign entities were

required to register as SDs or MSPs, such as

[[Page 2625]]

decreased competition, reduced liquidity, an exodus of foreign-based

market participants from the U.S. markets, rising costs for their U.S.

customers, and increased systemic risk. Some argued that the Commission

should defer to regulators in the home jurisdiction lest participants

be subject to multiple and inconsistent regulatory burdens.\111\ Most

of these comments address the question of which entities are SDs or

MSPs, and the consequences of being required to register as such,

rather than the costs of the registration process per se.

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\111\ These commenters did not quantify these costs. Further,

the Commission is unable to estimate these costs, which it views as

not directly related to the costs of the registration process

regulations for SDs and MSPs. These costs are more costs of

compliance with the Section 4s Implementing Regulations, which the

Commission intends to address as it finalizes those regulations.

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The Commission generally does not believe that foreign-based Swaps

Entities will bear higher costs associated with the registration

process than U.S.-based Swaps Entities. The identified costs are fees

to become registered under the CEA with the Commission and annual NFA

membership dues. Many of these foreign-based commenters are already

familiar with navigating various U.S. federal and state regulatory

regimes in connection with their other lines of business, such as

banking and insurance. Moreover, many of the commenters already have

operations and capable personnel physically located in the U.S. To the

extent that an SD or MSP has neither familiarity with other U.S.

regulatory regimes nor personnel physically located in the U.S., the

Commission believes that any potentially higher costs that may be

incurred in connection with the registration process regulations by a

foreign-based Swaps Entity are a necessary consequence of adequately

regulating the U.S. swaps markets and ensuring a level playing field

for all intermediaries involved in the U.S. swaps markets.

3. Evaluation of Market and Public Interest Considerations in Light of

CEA Section 15(a)

(1) Protection of Market Participants and the Public

The registration of Swaps Entities is a critical component of the

comprehensive regulation of these persons. It is a statutory

requirement that SDs and MSPs be registered. Notably, the registration

process will serve to confirm initial compliance by an SD or MSP with

the Section 4s Implementing Regulations. Moreover, attendant to

applying for registration, SDs and MSPs, along with their principals,

will be vetted, and those deemed unfit will be barred from

registration. As a result, registration and the related requirements

\112\ of this final rulemaking will help protect the public by

preventing those unfit to intermediate and participate in the swaps

markets from registering in the first instance.

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\112\ E.g., as a prerequisite to granting registration, NFA will

confirm initial compliance by an applicant for registration as an SD

or MSP with each Section 4s Implementing Regulation, and a Swaps

Entity may not, subject to certain limited exceptions, permit a

statutorily disqualified associated person to effect or be involved

in effecting swaps on its behalf.

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Also, NFA provides an on-line, public database, the Background

Affiliation Status Information Center (BASIC), with information on each

registrant's status and the status of the registrant's principals.

BASIC also provides additional information, such as regulatory actions

taken by NFA or the Commission, with respect to a registrant or its

principals. Access to this database provides all persons with important

information about Commission registrants with whom they may seek to

transact business.

(2) Efficiency, Competitiveness, and the Financial Integrity of the

Market

Utilizing NFA's existing registration expertise and resources

promotes efficiency in that it employs NFA's existing capabilities

rather than requiring Commission investment (e.g., hiring staff and

building a technological infrastructure to process applications) to

build a new registration system. Similarly, because NFA is building

upon its existing oversight infrastructure, it should incur fewer costs

to oversee compliance relative to direct Commission oversight. While

the Commission will continue to oversee the registration process,

delegation of the performance of registration functions to an RFA will

avoid the unnecessary diversion of limited agency resources from the

Commission's other responsibilities to protect the public.

(3) Price Discovery

The Commission has not identified any impact on price discovery

through the registration provisions of this rulemaking.

(4) Sound Risk Management Practices

As is explained above, registration is a critical component within

the Dodd-Frank Act regulatory regime to ensure the fitness of SDs and

MSPs. In addition to disqualifying ineligible persons, it enhances

market participants' ability to make more informed counterparty

selection decisions. In this way, it is consistent with sound risk

management practices.

(5) Other Public Interest Considerations

CEA section 15 directs the Commission to consider in its cost-

benefit evaluation ``other public interest considerations.'' One such

consideration is public confidence. As an element of a regulatory

regime that establishes minimum participation standards, the Commission

believes that the registration process will promote public confidence

in swaps market integrity.

List of Subjects

17 CFR Part 1

Brokers, Commodity futures, Definitions, Major swap participants,

Swap dealers.

17 CFR Part 3

Customer protection, Licensing, Major swap participants,

Registration, Swap dealers.

17 CFR Part 23

Associated persons, Major swap participants, Registration, Swap

dealers.

17 CFR Part 170

Membership, Registered futures associations.

For the reasons presented above, the Commission hereby amends

Chapter I of Title 17 of the Code of Federal Regulations as follows:

PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT

0

1. The authority citation for part 1 is revised 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 (July 21,

2010).

0

2. In Sec. 1.3, paragraph (aa)(6) is added to read as follows:

Sec. 1.3 Definitions.

* * * * *

(aa) * * *

(6) A swap dealer or major swap participant as a partner, officer,

employee, agent (or any natural person occupying a similar status or

performing similar functions), in any capacity that involves:

(i) The solicitation or acceptance of swaps (other than in a

clerical or ministerial capacity); or

[[Page 2626]]

(ii) The supervision of any person or persons so engaged.

* * * * *

PART 3--REGISTRATION

0

3. The authority citation for part 3 is revised to read as follows:

Authority: 5 U.S.C. 522, 522b; 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c,

6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 6s, 8, 9, 9a, 12, 12a,

13b, 13c, 16a, 18, 19, 21, and 23, as amended by Title VII of the

Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L.

111-203, 124 Stat. 1376 (July 21, 2010).

0

4. Section 3.1 is amended by adding paragraphs (f) and (g) to read as

follows:

Sec. 3.1 Definitions.

* * * * *

(f) Section 4s Implementing Regulation. Section 4s Implementing

Regulation means a regulation the Commission issues pursuant to section

4s(e), 4s(f), 4s(h), 4s(i), 4s(j), 4s(k), or 4s(l) of the Act.

(g) Swap Definitional Regulation. Swap Definitional Regulation

means a regulation the Commission issues to further define the term

``swap dealer,'' ``major swap participant'' or ``swap'' in section

1a(49), 1a(33) or 1a(47) of the Act, respectively, pursuant to the

Dodd-Frank Wall Street Reform and Consumer Protection Act.

0

5. Section 3.2 is amended by:

0

a. Revising the section heading; and

0

b. Adding paragraph (c)(3).

The revision and addition read as follows:

Sec. 3.2 Registration processing by the National Futures Association;

notification and duration of registration; provisional registration.

* * * * *

(c) * * *

(3)(i) If an applicant for registration as a swap dealer or major

swap participant pursuant to Sec. 3.10(a)(1)(v) files a Form 7-R and a

Form 8-R and fingerprint card for each natural person who is a

principal of the applicant, accompanied by such documentation as may be

required to demonstrate compliance with each of the Section 4s

Implementing Regulations, as defined in Sec. 3.1(f), as are applicable

to it, in accordance with the terms of the Section 4s Implementing

Regulations, the National Futures Association shall notify the swap

dealer or major swap participant, as the case may be, that it is

provisionally registered.

(ii) Subsequent to providing notice of provisional registration to

an applicant for registration as a swap dealer or major swap

participant, the National Futures Association shall determine whether

the documentation submitted pursuant to Sec. 3.10(a)(1)(v) by the

applicant demonstrates compliance with the Section 4s Implementing

Regulation to which it pertains; Provided, that where the National

Futures Association has notified the applicant that it is provisionally

registered, the applicant must supplement its registration application

by providing such documentation as may be required to demonstrate

compliance with each Section 4s Implementing Regulation that the

Commission issues subsequent to the date the National Futures

Association notifies the applicant that it is provisionally registered.

(iii) On and after the date on which the National Futures

Association confirms that the applicant for registration as a swap

dealer or major swap participant has demonstrated its initial

compliance with the applicable requirements of each of the Section 4s

Implementing Regulations and all other applicable registration

requirements under the Act and Commission regulations, the provisional

registration of the applicant shall cease and it shall be registered as

a swap dealer or major swap participant, as the case may be.

* * * * *

0

6. Section 3.4 is amended by revising paragraph (a) to read as follows:

Sec. 3.4 Registration in one capacity not included in registration in

any other capacity.

(a) Except as may be otherwise provided in the Act or in any rule,

regulation, or order of the Commission, each futures commission

merchant, retail foreign exchange dealer, swap dealer, major swap

participant, introducing broker, commodity pool operator, commodity

trading advisor, leverage transaction merchant, floor broker, floor

trader, and associated person (other than an associated person of a

swap dealer or major swap participant) must register as such under the

Act. Registration in one capacity under the Act shall not include

registration in any other capacity; Provided, however, That a

registered floor broker need not also register as a floor trader in

order to engage in activity as a floor trader.

* * * * *

0

7. Section 3.10 is amended by:

0

a. Revising the section heading;

0

b. Revising paragraph (a)(1)(i);

0

c. Adding paragraphs (a)(1)(iii), (iv), and (v); and

0

d. Revising paragraphs (b)(1) and (d).

The additions and revisons read as follows:

Sec. 3.10 Registration of futures commission merchants, retail

foreign exchange dealers, introducing brokers, commodity trading

advisors, commodity pool operators, swap dealers, major swap

participants and leverage transaction merchants.

(a) Application for registration. (1)(i) Except as provided in

paragraph (a)(3) of this section, application for registration as a

futures commission merchant, retail foreign exchange dealer, swap

dealer, major swap participant, introducing broker, commodity pool

operator, commodity trading advisor, or leverage transaction merchant

must be on Form 7-R, completed and filed with the National Futures

Association in accordance with the instructions thereto.

* * * * *

(iii) Applicants for registration as a commodity pool operator must

accompany their Form 7-R with the financial statements described in

Sec. 4.13(c) of this chapter.

(iv) Applicants for registration as a leverage transaction merchant

must accompany their Form 7-R with a Form 2-FR in accordance with the

provisions of Sec. 31.13 of this chapter.

(v)(A) Applicants for registration as a swap dealer or major swap

participant must accompany their Form 7-R with such documentation as

may be required to demonstrate compliance with each Section 4s

Implementing Regulation, as defined in Sec. 3.1(f), applicable to

them, in accordance with the terms of the Section 4s Implementing

Regulation; Provided, however, that for the purposes of this paragraph

(a)(1)(v) the term ``compliance'' includes the term ``the ability to

comply,'' to the extent that a particular Section 4s Implementing

Regulation may require demonstration of the ability to comply with a

requirement thereunder.

(B) The filing of the Form 7-R and accompanying documentation by

the applicant swap dealer or major swap participant authorizes the

Commission to conduct on-site inspection of the applicant to determine

compliance with the Section 4s Implementing Regulations applicable to

it.

(C)(1) At any time prior to the latest effective date of the Swap

Definitional Regulations, defined in Sec. 3.1(g), any person may apply

to be registered as a swap dealer or major swap participant.

(2) By no later than the latest effective date of the Swap

Definitional Regulations, each person who is a swap dealer or major

swap participant on that date must apply to be registered as a swap

dealer or major swap participant, as the case may be.

(3) From and after the latest effective date of the Swap

Definitional

[[Page 2627]]

Regulations, each person who intends to engage in business as a swap

dealer or major swap participant must apply to be registered as a swap

dealer or major swap participant, as the case may be.

(D)(1) Where an applicant for registration as a swap dealer or

major swap participant to whom the National Futures Association has

provided notice of provisional registration under Sec. 3.2(c)(3) fails

to demonstrate compliance with a Section 4s Implementing Regulation,

the National Futures Association will notify the applicant that its

application is deficient, whereupon the applicant must withdraw its

registration application, it must not engage in any new activity as a

swap dealer or major swap participant, as the case may be, and the

applicant shall cease to be provisionally registered; Provided, that in

the event the applicant fails to withdraw its registration application

or cure the deficiency within 90 days following receipt of notice from

the National Futures Association that its application is deficient, the

application will be deemed withdrawn and thereupon its provisional

registration shall cease; Provided further, that upon written request

by the applicant submitted to the Commission, the Commission may in its

discretion extend the time by which the applicant must cure the

deficiency.

(2) The provisions of the foregoing paragraph (a)(1)(v)(D)(1) of

this section shall supplement and be in addition to any other

activities in which the National Futures Association engages under the

Act and Commission regulations in connection with processing an

application for registration as a swap dealer or major swap

participant.

(E) Unless specifically reserved in the applicable swap

documentation, no withdrawal, deemed withdrawal, cessation or

revocation of registration as a swap dealer or major swap participant

pursuant to paragraph (a)(1)(v), (b), or (d) of this section shall

constitute a termination event, force majeure, an illegality, increased

costs, a regulatory change, or a similar event under a swap (including

any related credit support arrangement) that would permit a party to

terminate, renegotiate, modify, amend or supplement one or more

transactions under the swap.

* * * * *

(b) Duration of registration. (1) A person registered as a futures

commission merchant, retail foreign exchange dealer, swap dealer, major

swap participant, introducing broker, commodity pool operator,

commodity trading advisor, or leverage transaction merchant in

accordance with paragraph (a) of this section will continue to be so

registered until the effective date of any revocation or withdrawal of

such registration. Upon effectiveness of any revocation or withdrawal

of registration, such person will immediately be prohibited from

engaging in new activities requiring registration under the Act or from

representing himself to be a registrant under the Act or the

representative or agent of any registrant during the pendency of any

suspension of such registration.

* * * * *

(d) On a date to be established by the National Futures

Association, and in accordance with procedures established by the

National Futures Association, each registrant as a futures commission

merchant, retail foreign exchange dealer, swap dealer, major swap

participant, introducing broker, commodity pool operator, commodity

trading advisor, or leverage transaction merchant shall, on an annual

basis, review and update registration information maintained with the

National Futures Association. The failure to complete the review and

update within thirty days following the date established by the

National Futures Association shall be deemed to be a request for

withdrawal from registration, which shall be processed in accordance

with the provisions of Sec. 3.33(f).

* * * * *

0

8. Section 3.21 is amended by:

0

a. Revising paragraph (c) introductory text and paragraph (c)(1)(iv);

0

b. Adding paragraph (c)(1)(v);

0

c. Revising paragraph (c)(2)(i); and

0

d. Revising paragraph (c)(4)(i).

The revisions and addition read as follows:

Sec. 3.21 Exemption from fingerprinting requirement in certain cases.

* * * * *

(c) Outside directors. Any futures commission merchant, retail

foreign exchange dealer, swap dealer, major swap participant,

introducing broker, commodity pool operator, commodity trading advisor,

or leverage transaction merchant that has a principal who is a director

but is not also an officer or employee of the firm may, in lieu of

submitting a fingerprint card in accordance with the provisions of

Sec. Sec. 3.10(a)(2) and 3.31(a)(3), file a ``Notice Pursuant to Rule

3.21(c)'' with the National Futures Association. Such notice shall

state, if true, that such outside director:

(1) * * *

(iv) The solicitation of leverage customers' orders for leverage

transactions,

(v) The solicitation or acceptance of a swap agreement;

(2) * * *

(i) Transactions involving ``commodity interests,'' as that term is

defined in Sec. 1.3(yy);

* * * * *

(4) * * *

(i) The name of the futures commission merchant, retail foreign

exchange dealer, swap dealer, major swap participant, introducing

broker, commodity pool operator, commodity trading advisor, leverage

transaction merchant, or applicant for registration in any of these

capacities of which the person is an outside director;

* * * * *

0

9. Section 3.30 is amended by revising paragraph (a) to read as

follows:

Sec. 3.30 Current address for purpose of delivery of communications

from the Commission or the National Futures Association.

(a) The address of each registrant, applicant for registration, and

principal, as submitted on the application for registration (Form 7-R

or Form 8-R) or as submitted on the biographical supplement (Form 8-R)

shall be deemed to be the address for delivery to the registrant,

applicant or principal for any communications from the Commission or

the National Futures Association, including any summons, complaint,

reparation claim, order, subpoena, special call, request for

information, notice, and other written documents or correspondence,

unless the registrant, applicant or principal specifies another address

for this purpose: Provided, that the Commission or the National Futures

Association may address any correspondence relating to a biographical

supplement submitted for or on behalf of a principal to the futures

commission merchant, retail foreign exchange dealer, swap dealer, major

swap participant, introducing broker, commodity pool operator,

commodity trading advisor, or leverage transaction merchant with which

the principal is affiliated and may address any correspondence relating

to an associated person to the futures commission merchant, retail

foreign exchange dealer, swap dealer, major swap participant,

introducing broker, commodity pool operator, commodity trading advisor,

or leverage transaction merchant with which the associated person or

the applicant for registration is or will be associated as an

associated person.

* * * * *

[[Page 2628]]

0

10. Section 3.31 is amended by revising paragraphs (a)(1), (b), and

(c)(2) to read as follows:

Sec. 3.31 Deficiencies, inaccuracies, and changes, to be reported.

(a)(1) Each applicant or registrant as a futures commission

merchant, retail foreign exchange dealer, swap dealer, major swap

participant, introducing broker, commodity pool operator, commodity

trading advisor, or leverage transaction merchant shall, in accordance

with the instructions thereto, promptly correct any deficiency or

inaccuracy in Form 7-R or Form 8-R which no longer renders accurate and

current the information contained therein. Each such correction shall

be made on Form 3-R and shall be prepared and filed in accordance with

the instructions thereto. Provided, however, that where a registrant is

reporting a change in the form of organization from or to a sole

proprietorship, the registrant must file a Form 7-W regarding the pre-

existing organization and a Form 7-R regarding the newly formed

organization.

* * * * *

(b)(1) Each applicant for registration or registrant as a floor

broker, floor trader or associated person, and each principal of a

futures commission merchant, retail foreign exchange dealer,

introducing broker, commodity pool operator, commodity trading advisor,

or leverage transaction merchant must, in accordance with the

instructions thereto, promptly correct any deficiency or inaccuracy in

the Form 8-R or supplemental statement thereto which renders no longer

accurate and current the information contained in the Form 8-R or

supplemental statement. Each such correction must be made on Form 3-R

and must be prepared and filed in accordance with the instructions

thereto.

(2) Each applicant for registration or registrant as a swap dealer

or major swap participant and each principal of a swap dealer or major

swap participant, must, in accordance with the instructions thereto,

promptly correct any deficiency or inaccuracy in the Form 8-R or

supplemental statement thereto which renders no longer accurate and

current the information contained in the Form 8-R or supplemental

statement. Each such correction must be made on Form 3-R and must be

prepared and filed in accordance with the instructions thereto.

(c) * * *

(2) Each person registered as, or applying for registration as, a

futures commission merchant, retail foreign exchange dealer, swap

dealer, major swap participant, introducing broker, commodity pool

operator, commodity trading advisor, or leverage transaction merchant

must, within thirty days after the termination of the affiliation of a

principal with the registrant or applicant, file a notice thereof with

the National Futures Association.

* * * * *

0

11. Section 3.33 is amended by:

0

a. Revising paragraph (a) introductory text;

0

b. Revising paragraph (b) introductory text and paragraphs (b)(6)(vi)

and (vii);

0

c. Adding paragraphs (b)(6)(viii) and (ix); and

0

d. Revising paragraph (e).

The revisions and additions to read as follows:

Sec. 3.33 Withdrawal from registration.

(a) A futures commission merchant, retail foreign exchange dealer,

swap dealer, major swap participant, introducing broker, commodity pool

operator, commodity trading advisor, leverage transaction merchant,

floor broker or floor trader may request that its registration be

withdrawn in accordance with the requirements of this section if:

* * * * *

(b) A request for withdrawal from registration as a futures

commission merchant, retail foreign exchange dealer, swap dealer, major

swap participant, introducing broker, commodity pool operator,

commodity trading advisor, or leverage transaction merchant must be

made on Form 7-W, and a request for withdrawal from registration as a

floor broker or floor trader must be made on Form 8-W, completed and

filed with the National Futures Association in accordance with the

instructions thereto. The request for withdrawal must be made by a

person duly authorized by the registrant and must specify:

* * * * *

(6) * * *

(vi) The nature and extent of any pending customer, retail forex

customer, option customer, leverage customer, swap counterparty or

commodity pool participant claims against the registrant, and, to the

best of the registrant's knowledge and belief, the nature and extent of

any anticipated or threatened customer, option customer, leverage

customer, swap counterparty or commodity pool participant claims

against the registrant;

(vii) In the case of a futures commission merchant or a retail

foreign exchange dealer which is a party to a guarantee agreement, that

all such agreements have been or will be terminated in accordance with

the provisions of Sec. 1.10(j) of this chapter not more than thirty

days after the filing of the request for withdrawal from registration;

(viii) In the case of a swap dealer, that the person will not

engage in any new activity described in the definition of the term

``swap dealer'' in section 1a(49) of the Act, as such term may be

further defined by the Commission; and

(ix) In the case of a major swap participant, that the person will

not engage in any new activity described in the definition of the term

``major swap participant'' in section 1a(33) of the Act, as such term

may be further defined by the Commission.

* * * * *

(e) A request for withdrawal from registration as a futures

commission merchant, retail foreign exchange dealer, swap dealer, major

swap participant, introducing broker, commodity pool operator,

commodity trading advisor, or leverage transaction merchant on Form 7-

W, and a request for withdrawal from registration as a floor broker or

floor trader on Form 8-W, must be filed with the National Futures

Association and a copy of such request must be sent by the National

Futures Association within three business days of the receipt of such

withdrawal request to the Commodity Futures Trading Commission,

Division of Swap Dealer and Intermediary Oversight, Three Lafayette

Centre, 1155 21st Street NW., Washington, DC 20581. In addition, any

floor broker or floor trader requesting withdrawal from registration

must file a copy of his Form 8-W with each contract market that has

granted him trading privileges. Within three business days of any

determination by the National Futures Association under Sec. 3.10(d)

to treat the failure by a registrant to file an annual Form 7-R as a

request for withdrawal, the National Futures Association shall send the

Commission notice of that determination.

* * * * *

0

12. Part 23 is added to read as follows:

PART 23--SWAP DEALERS AND MAJOR SWAP PARTICIPANTS

Subpart A--[Reserved]

Sec.

23.1-23.20 [Reserved]

Subpart B--Registration

23.21 Registration of swap dealers and major swap participants.

23.22 Associated persons of swap dealers and major swap

participants.

[[Page 2629]]

23.23-23.40 [Reserved]

Authority: 7 U.S.C. 1a, 2, 6, 6a, 6b, 6c, 6p, 6s, 9, 9a, 13b,

13c, 16a, 18, 19, 21 as amended by Title VII of the Dodd-Frank Wall

Street Reform and Consumer Protection Act, Pub. L. 111-203, 124

Stat. 1376 (July 21, 2010).

Subpart A--Definitions

Sec. Sec. 23.1-23.20 [Reserved]

Subpart B--Registration

Sec. 23.21 Registration of swap dealers and major swap participants.

(a) Each person who comes within the definition of the term ``swap

dealer'' in section 1a(49) of the Act, as such term may be further

defined by the Commission, is subject to the registration provisions

under the Act and to part 3 of this chapter.

(b) Each person who comes within the definition of the term ``major

swap participant'' in section 1a(33) of the Act, as such term may be

further defined by the Commission, is subject to the registration

provisions under the Act and to part 3 of this chapter.

(c) Each affiliate of an insured depository institution described

in section 716(c) of the Dodd-Frank Wall Street Reform and Consumer

Protection Act (Pub. L. 111-203 section 716(c), 124 Stat. 1376 (2010))

is required to be registered as a swap dealer if the affiliate is a

swap dealer or as a major swap participant if the affiliate is a major

swap participant.

Sec. 23.22 Associated persons of swap dealers and major swap

participants.

(a) Definition. For the purpose of this section, the term

``person'' means an ``associated person of a swap dealer or major swap

participant'' as defined in section 1a(4) of the Act and Sec.

1.3(aa)(6).

(b) Fitness. No swap dealer or major swap participant may permit a

person who is subject to a statutory disqualification under section

8a(2) or 8a(3) of the Act to effect or be involved in effecting swaps

on behalf of the swap dealer or major swap participant, if the swap

dealer or major swap participant knows, or in the exercise of

reasonable care should know, of the statutory disqualification;

Provided, however, that the prohibition set forth in this paragraph (b)

shall not apply to any person listed as a principal or registered as an

associated person of a futures commission merchant, retail foreign

exchange dealer, introducing broker, commodity pool operator, commodity

trading advisor, or leverage transaction merchant, or any person

registered as a floor broker or floor trader, notwithstanding that the

person is subject to a disqualification from registration under section

8a(2) or 8a(3) of the Act.

Sec. Sec. 23.23-23.40 [Reserved]

PART 170--REGISTERED FUTURES ASSOCIATIONS

0

13. The authority citation for part 170 continues to read as follows:

Authority: 7 U.S.C. 6p, 12a and 21.

0

14. Section 170.16 is added to read as follows:

Sec. 170.16 Swap dealers and major swap participants.

Each person registered as a swap dealer or major swap participant

must become and remain a member of at least one futures association

that is registered under section 17 of the Act and that provides for

the membership therein of such swap dealer or major swap participant,

as the case may be, unless no such futures association is so

registered.

Issued in Washington, DC, on January 11, 2012, by the

Commission.

David A. Stawick,

Secretary of the Commission.

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendices to Registration of Swap Dealers and Major Swap

Participants--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 establish a process for the

registration of swap dealers and major swap participants. The rule

implements the Dodd-Frank Wall Street Reform and Consumer Protection

Act (Dodd-Frank Act) mandate that these entities be subject to

registration and regulation for their swaps business. Registration

will enable the Commodity Futures Trading Commission to monitor swap

dealers and major swap participants for compliance with the Dodd-

Frank Act and Commission rulemakings. Through regulation of dealers,

the Commission will be able to protect market participants and the

public, as well as promote sound risk management practices. The

final rule includes a requirement that swap dealers and major swap

participants become members of a registered futures association,

such as the National Futures Association (NFA).

In addition, I support the order delegating to the NFA the

authority to register swap dealers and major swap participants. This

will help efficiently allocate resources and provide the Commission

with flexibility.

[FR Doc. 2012-792 Filed 1-18-12; 8:45 am]

BILLING CODE 6351-01-P

Last Updated: January 19, 2012