2016-23983

Federal Register, Volume 81 Issue 199 (Friday, October 14, 2016)

[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]

[Rules and Regulations]

[Pages 71202-71241]

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

[FR Doc No: 2016-23983]

[[Page 71201]]

Vol. 81

Friday,

No. 199

October 14, 2016

Part II

Commodity Futures Trading Commission

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

17 CFR Part 50

Clearing Requirement Determination Under Section 2(h) of the Commodity

Exchange Act for Interest Rate Swaps; Final Rule

Federal Register / Vol. 81 , No. 199 / Friday, October 14, 2016 /

Rules and Regulations

[[Page 71202]]

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

COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 50

RIN 3038-AE20

Clearing Requirement Determination Under Section 2(h) of the

Commodity Exchange Act for Interest Rate Swaps

AGENCY: Commodity Futures Trading Commission.

ACTION: Final rule.

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

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

is adopting an amendment to the Commission's regulations to expand the

existing clearing requirement for interest rate swaps pursuant to the

pertinent section of the Commodity Exchange Act (CEA). The amended

regulation requires that interest rate swaps denominated in certain

currencies and having certain termination dates, as described herein,

be submitted for clearing to a derivatives clearing organization (DCO)

that is registered under the CEA (registered DCO) or a DCO that has

been exempted from registration under the CEA (exempt DCO).

DATES: The amended rule is effective December 13, 2016. Specific

compliance dates are discussed in the Supplementary Information.

FOR FURTHER INFORMATION CONTACT: Sarah E. Josephson, Deputy Director,

Division of Clearing and Risk (DCR), at 202-418-5684 or

[email protected]; Peter A. Kals, Special Counsel, DCR, at 202-418-

5466 or [email protected]; Melissa A. D'Arcy, Special Counsel, DCR, at

202-418-5086 or [email protected]; Meghan A. Tente, Special Counsel, DCR,

at 202-418-5785 or [email protected]; Michael A. Penick, Economist,

Office of the Chief Economist (OCE), at 202-418-5279 or

[email protected]; or Lihong McPhail, Research Economist, OCE, at 202-

418-5722 or [email protected], in each case at the Commodity Futures

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

Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background

A. Clearing Requirement Proposal

B. Regulatory Background

C. Clearing Requirements in Other Jurisdictions

D. Submissions From DCOs

E. Commission Processes for Review and Surveillance of DCOs

II. Comments on the Notice of Proposed Rulemaking

A. Overview of Comments Received

B. Determination Analysis

C. Generally Applicable Comments

III. Expanded and Amended Regulation 50.4(a)

IV. Implementation Schedule

A. No Compliance Date Phase-In by Type of Market Participant

B. Compliance Date Tied to a Non-U.S. Jurisdiction Clearing

Requirement

C. Clarifications to the Implementation Schedule

D. Scope of Entities Subject to the Implementation Schedule

E. Projected Compliance Dates

V. Cost Benefit Considerations

A. Statutory and Regulatory Background

B. Overview of Swap Clearing

C. Consideration of the Costs and Benefits of the Commission's

Action

D. Costs and Benefits of the Commission's Action as Compared to

Alternatives

E. Section 15(a) Factors

VI. Related Matters

A. Regulatory Flexibility Act

B. Paperwork Reduction Act

I. Background

A. Clearing Requirement Proposal

On June 16, 2016, the Commission published a notice of proposed

rulemaking (NPRM) to establish an expanded interest rate swap clearing

requirement under section 2(h)(1)(A) of the CEA and Commission

regulation 50.4(a).\1\ The Commission proposed requiring clearing of

certain interest rate swaps offered for clearing at Chicago Mercantile

Exchange, Inc. (CME), Eurex Clearing AG (Eurex), LCH.Clearnet Ltd.

(LCH), and/or Singapore Exchange Derivatives Clearing Ltd. (SGX), each

a Commission-registered DCO.\2\ The interest rate swaps proposed in the

NPRM were: Fixed-to-floating interest rate swaps denominated in

Australian dollar (AUD), Canadian dollar (CAD), Hong Kong dollar (HKD),

Mexican peso (MXN), Norwegian krone (NOK), Polish zloty (PLN),

Singapore dollar (SGD), Swedish krona (SEK), and Swiss franc (CHF)

(collectively, the nine additional currencies); basis swaps denominated

in AUD; forward rate agreements (FRAs) denominated in AUD, NOK, PLN,

and SEK; overnight index swaps (OIS) denominated in AUD and CAD; and

OIS having termination dates of up to three years that are denominated

in U.S. dollar (USD), euro (EUR), or sterling (GBP).\3\

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

\1\ Clearing Requirement Determination Under Section 2(h) of the

CEA for Interest Rate Swaps, 81 FR 39506 (June 16, 2016).

\2\ Two DCOs that the Commission has exempted from registration,

ASX Clear (Futures) Pty Ltd. (Australia) (ASX) and OTC Clearing Hong

Kong Ltd., clear some of the swaps covered by this determination

(AUD- and HKD-denominated interest rate swaps, respectively).

Pursuant to Commission orders, these two DCOs are permitted to clear

for U.S. proprietary accounts but not for U.S. customers. However,

as discussed further below, should either of these two exempt DCOs

decide that they wish to offer clearing to U.S. customers, they

would be eligible to apply for registration as full DCOs. Because

these DCOs have not submitted filings under Commission regulation

39.5(b), this final rule addresses only those registered DCOs that

have submitted swaps for consideration under that regulation.

\3\ See Table 1 for information regarding which registered DCOs

clear which interest rate swaps. Each DCO submitted information

about the interest rate swaps subject to this rulemaking to the

Commission pursuant to regulation 39.5(b), which is discussed

further below.

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

For the reasons discussed below, this final rulemaking expands the

existing interest rate swap clearing requirement by requiring the

clearing of all of the swaps covered by the NPRM, except for AUD-

denominated FRAs.

B. Regulatory Background

The Commission's first clearing requirement determination issued in

2012 applied to four classes of interest rate swaps and two classes of

credit default swaps.\4\ The Commission is adopting this clearing

requirement determination to require the clearing of certain,

additional interest rate swaps pursuant to section 2(h) of the CEA.

Under section 2(h)(1)(A) of the CEA, it is unlawful for any person to

engage in a swap unless that person submits such swap for clearing to a

DCO that is registered under the CEA or a DCO that is exempt from

registration under the CEA if the swap is required to be cleared. The

Commission may initiate a clearing requirement determination pursuant

to a swap submission from a registered DCO.\5\ Section 2(h)(2)(B)(i) of

[[Page 71203]]

the CEA requires a DCO to submit to the Commission each swap, or any

group, category, type, or class of swaps that it plans to accept for

clearing and provide notice to its members of the submission.

Commission regulation 39.5(b) implements the procedural elements of

section 2(h)(2)(B)-(C) by establishing the specific process for the

submission of swaps by a DCO to the Commission for a clearing

requirement determination.\6\

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

\4\ Clearing Requirement Determination Under Section 2(h) of the

CEA, 77 FR 74284 (Dec. 13, 2012) [hereinafter the First Clearing

Requirement Determination]. The four classes of interest rate swaps

defined under Commission regulation 50.4(a) include fixed-to-

floating, basis, FRA, and OIS. In 2012, the Commission required

that, for the fixed-to-floating, basis, and FRA classes, the top

four currencies as measured by total notional amount be subject to

required clearing. Those top four currencies were EUR, USD, GBP, and

Japanese yen (JPY). All four currencies were specified in the fixed-

to-floating, basis, and FRA classes under regulation 50.4(a). For

OIS swaps, all the currencies except JPY were specified under the

rule.

\5\ Section 2(h)(2) of the CEA provides the Commission with

authority to issue a determination that a swap is required to be

cleared pursuant to two separate review processes. Section

2(h)(2)(A) of the CEA provides for a Commission-initiated review

process whereby the Commission, on an ongoing basis, must review

swaps (or a group, category, type or class of swaps) to make a

determination as to whether a swap (or group, category, type or

class of swaps) should be required to be cleared. The other process

provided under section 2(h)(2)(B) of the CEA entails the

Commission's review of swaps that are submitted by DCOs.

Specifically, section 2(h)(2)(B)(i) of the CEA requires that each

DCO submit to the Commission each swap (or group, category, type or

class of swaps) that it plans to accept for clearing. The swaps

subject to this rulemaking were submitted by DCOs pursuant to

section 2(h)(2)(B)(i) of the CEA and Commission regulation 39.5(b).

\6\ Section 2(h)(2)(B)-(C) of the CEA describes the process by

which the Commission is required to review swap submissions from

DCOs to determine whether the swaps should be subject to the

clearing requirement. On June 23, 2016, the Commission published on

its Web site for public comment 34 submissions from DCOs submitted

pursuant to section 2(h)(2)(B) of the CEA and CFTC regulation

39.5(b) over the past few years. The public comment period closed on

July 25, 2016, and five letters were submitted by that date. See

CFTC Press Release, CFTC Requests Public Comment on Swap Clearing

Requirement Submissions (June 23, 2016), available at: http://www.cftc.gov/PressRoom/PressReleases/pr7396-16. Any future proposals

for a new clearing requirement determination related to the swaps

covered by those 34 submissions would be subject to a separate

notice and comment rulemaking process. Market participants may offer

additional comments or feedback on market developments related to

those 34 submissions by contacting any of the DCR staff named above.

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

Accordingly, the Commission is issuing this final rulemaking to

adopt an amendment to Sec. 50.4(a) such that the following products

are subject to the clearing requirement as set forth in regulation

50.4: (1) Fixed-to-floating swaps denominated in the nine additional

currencies; (2) basis swaps denominated in AUD; (3) FRAs denominated in

NOK, PLN, and SEK; (4) OIS denominated in AUD and CAD; and (5) OIS

denominated in USD, EUR, and GBP that have termination dates of up to

three years.

C. Clearing Requirements in Other Jurisdictions

The following is an updated summary of actions taken by other

jurisdictions towards implementing clearing mandates for interest rate

swaps. The Commission believes that it is important to harmonize its

swap clearing requirement with clearing mandates promulgated in other

jurisdictions. For example, if a non-U.S. jurisdiction issued a

clearing requirement and a swap dealer (SD) located in the U.S. were

not subject to that non-U.S. clearing requirement, then a swap market

participant located in the non-U.S. jurisdiction might be able to avoid

the non-U.S. clearing requirement by entering into a swap with the SD

located in the U.S.

As the Commission reviewed the regulation 39.5(b) submissions from

DCOs, it considered whether those products offered for clearing at DCOs

were subject, or were likely to be subject, to a clearing requirement

in another jurisdiction. For those products that were the subject of a

clearing requirement rule or proposal outside of the U.S., the

Commission reviewed the specifications of the products and the

processes used by non-U.S. regulators to impose a clearing mandate. In

addition, the Commission reviewed data produced and made available to

the public in connection with any rule proposals or final rules

implementing a clearing requirement in non-U.S. jurisdictions. Finally,

the Commission considered comments submitted in response to clearing

mandate rule proposals in non-U.S. jurisdictions and any subsequent

changes that regulators made to final rules implementing a clearing

mandate. In this manner, the Commission was informed by its review of

non-U.S. jurisdictions' clearing mandates and considered those mandates

in preparing this determination.

Consequently, the scope of the swaps included in this final

rulemaking reflects the Commission's desire to harmonize with our

counterparts abroad and is informed by the work of those regulators, as

described below. In addition, the product specifications of the swaps

included in this clearing requirement determination are intended to be

consistent with those referenced in clearing mandates published by the

Commission's counterparts abroad.\7\

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

\7\ In the future, it may be appropriate to propose a clearing

requirement under the CEA covering swaps that are not yet the

subject of a proposed or final clearing mandate issued by a non-U.S.

jurisdiction. See generally comment letter from the International

Swaps and Derivatives Association, Inc. (ISDA), at 5, (discussing

the goal of harmonizing clearing mandates, commending the

Commission's independent analysis in the NPRM, and noting that ``the

CFTC does not have any control over the clearing mandates of its

counterparts in non-U.S. jurisdictions and therefore should continue

to conduct full and robust independent analysis prior to

implementing any clearing mandates.'').

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

i. Australia

The Australian Securities and Investments Commission (ASIC) has

published regulations that require certain Australian and non-

Australian entities \8\ to clear AUD-, USD-, GBP-, EUR-, and JPY-

denominated fixed-to-floating interest rate swaps, basis swaps, and

FRAs, as well as AUD-, USD-, GBP-, and EUR-denominated OIS. The

regulations' swap classes are co-extensive with those described in

existing Commission regulation 50.4(a), except for the addition of AUD-

denominated swaps. The first compliance date for an Australian market

participant to comply with the Australian clearing mandate for AUD-

denominated fixed-to-floating interest rate swaps and basis swaps was

April 4, 2016.\9\ The first compliance date for the Australian clearing

mandate for AUD-denominated OIS will be October 3, 2016 and for AUD-

denominated FRAs April 2, 2018.\10\

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

\8\ As defined under ASIC's final clearing rules, clearing

entities subject to the Australian clearing mandate include

Australian authorized deposit-taking institutions (ADIs) and

Australian financial services licensee (AFS Licensees) that hold a

total gross notional outstanding position of AUD 100 billion or more

under specific circumstances, as measured at particular points in

time. To account for non-Australian entities, ASIC's final rules

also define foreign clearing entities, opt-in clearing entities, and

cross-reference to Australia's Corporations Regulations 2001

definition of foreign internationally active dealers. ASIC

Derivative Transaction Rules (Clearing) 2015, available at: https://www.comlaw.gov.au/Details/F2015L01960.

\9\ ASIC Derivative Transaction Rules (Clearing) 2015, at

section 1.2.7.

\10\ Id., at section 1.2.3.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include AUD-denominated fixed-to-floating interest rate

swaps, basis swaps, and OIS swaps that are consistent with the AUD-

denominated swaps that are, or will be, required to be cleared by

ASIC.\11\

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

\11\ For the reasons discussed below, the Commission is not

finalizing its proposed requirement to clear AUD-denominated FRAs at

this time.

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

ii. Canada

In 2015, Canada's provincial securities regulators \12\ published a

draft rule that would require certain derivatives to be cleared.\13\ On

February 24, 2016, the Canadian provincial securities regulators

published a revised draft rule that applies to certain

[[Page 71204]]

Canadian market participants \14\ and proposes subjecting the following

classes of interest rate swaps to a clearing mandate: CAD-, USD-, EUR-,

and GBP-denominated fixed-to-floating interest rate swaps; USD-, EUR-,

and GBP-denominated basis swaps; USD-, EUR-, and GBP-denominated FRAs;

and CAD-, USD-, EUR-, and GBP-denominated OIS.\15\ Subject to

ministerial approvals, the Canadian provincial securities regulators'

revised rule will take effect on May 9, 2017.\16\ Consequently, it is

the Commission's understanding that May 9, 2017 is the first compliance

date upon which a Canadian market participant will be required to

comply with the clearing mandate.\17\

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

\12\ Canada's provincial securities regulators are collectively

referred to as the Canadian Securities Administrators, including

representatives from: The Alberta Securities Commission; the British

Columbia Securities Commission; the Manitoba Securities Commission;

the Financial and Consumer Services Commission of New Brunswick; the

Office of the Superintendent of Securities Service Newfoundland and

Labrador; the Office of the Superintendent of Securities of the

Northwest Territories; the Nova Scotia Securities Commission; the

Nunavut Securities Offices; the Ontario Securities Commission; the

Office of the Superintendent of Securities of Prince Edward Island;

the Autorit[eacute] des march[eacute]s financiers; the Financial and

Consumer Affairs Authority of Saskatchewan; and the Office of the

Yukon Superintendent of Securities. See also, CSA Members, available

at: http://www.csa-acvm.ca/aboutcsa.aspx?id=80.

\13\ Draft National Instrument 94-101 respecting Mandatory

Central Counterparty Clearing of Derivatives. Summary available at:

http://www.albertasecurities.com/Regulatory%20Instruments/5022685-v5-Proposed_NI_94-101_package.pdf.

\14\ The draft rule proposed by Canada's provincial securities

regulators would require central counterparty clearing for

transactions entered into between a local counterparty and: (i) A

clearing member of a regulated clearing agency that clears a

mandatory clearable derivative; (ii) an affiliated entity of the

clearing member described in (i); or (iii) a local counterparty that

has, together with its local affiliates, an aggregate gross notional

amount of more than CAD 500 million outstanding (excluding

intragroup transactions). See, Draft Regulation 94-101 respecting

Mandatory Central Counterparty Clearing of Derivatives (2nd

Publication). Summary available at: http://www.lautorite.qc.ca/files/pdf/reglementation/instruments-derives/reglements/94-101/2016-02-24/2016fev24-94-101-avis-cons-en.pdf.

\15\ Id. The Canadian regulators' draft regulation does not

propose to include CAD-denominated basis swaps or FRAs. Therefore,

the Commission is adding only CAD-denominated fixed-to-floating

interest rate swaps and OIS to the CFTC's clearing requirement under

this determination.

\16\ The Commission staff has consulted with Canadian provincial

authorities to confirm the timetable for implementation of the

clearing obligation.

\17\ Id.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include CAD-denominated fixed-to-floating interest rate

swaps and OIS swaps that are consistent with the CAD-denominated swaps

that will be required to be cleared by the Canadian provincial

securities regulators.

iii. European Union

On August 6, 2015, the European Commission adopted an initial

interest rate swap clearing obligation for certain financial

counterparties and non-financial counterparties \18\ that the European

Securities and Markets Authority (ESMA) developed pursuant to the

European Market Infrastructure Regulation (EMIR).\19\ The initial

European interest rate swap class is co-extensive with the clearing

requirements under regulation 50.4(a), except that with respect to OIS,

the European class covers OIS with a termination date range of up to

three years instead of two. Similarly, the initial European class

covers interest rate swaps denominated in USD, EUR, GBP, and JPY, but

not any of the nine additional currencies.\20\ Compliance with the

European clearing obligation is required for transactions between

clearing member counterparties at this time, and will be phased in

between 2016 and 2018 for additional transactions by type of

counterparty.\21\ The first compliance date for a European market

participant to comply with the clearing obligation for EUR-, USD-, and

GBP-denominated OIS with termination dates ranging from seven days to

three years was on June 21, 2016.\22\ The EUR-, USD-, and GBP-

denominated OIS with termination dates ranging from two years to three

years that are included in this rulemaking are covered by the European

Commission's initial clearing obligation.

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

\18\ The European Commission's clearing requirement applies to

all financial counterparties (e.g., banks, insurers, asset managers,

etc.) and certain non-financial counterparties, which are European

Union entities that do not fall within the definition of a financial

counterparty, but exceed the clearing thresholds (non-financial

counterparties above the applicable clearing threshold by asset

class). The non-financial counterparty clearing threshold for

interest rate swaps is EUR 3 billion in gross notional value. See

European Commission Delegated Regulation (EU) No. 149/2013,

available at: http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2013:052:0011:0024:EN:PDF.

\19\ European Commission press release announcing the European

Clearing Obligation, available at: http://europa.eu/rapid/press-release_IP-15-5459_en.htm. See also Regulation (EU) No. 648/2012.

\20\ European Commission Delegated Regulation (EU) No. 2015/

2205, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2205&from=EN.

\21\ Id. Under the European Commission Delegated Regulation (EU)

No. 2015/2205, Category 1 counterparties are clearing members of at

least one of the central counterparties authorized or recognized to

clear at least one class of mandated derivatives, as of December 21,

2015; Category 2 counterparties are entities that meet the EUR 8

billion threshold of month-end average outstanding gross notional

amounts of derivatives for a three month period, limited to

financial counterparties or alternative investment funds that are

non-financial counterparties; Category 3 counterparties are

financial counterparties and alternative investment funds that are

non-financial counterparties, that are not Category 1 or Category 2

counterparties; and Category 4 counterparties are non-financial

counterparties that do not belong in Category 1, 2, or 3.

\22\ European Commission Delegated Regulation (EU) No. 2015/

2205, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015R2205&from=EN.

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

On June 10, 2016, the European Commission adopted an expansion of

the European Union clearing obligation for certain financial

counterparties and non-financial counterparties \23\ to cover NOK-,

PLN-, and SEK-denominated fixed-to-floating interest rate swaps and

FRAs.\24\ The first compliance date for a European market participant

to comply with the NOK-, PLN-, and SEK-denominated fixed-to-floating

interest rate swaps and FRA clearing obligation will be on February 9,

2017.\25\ The European Commission's expanded clearing obligation will

apply only to transactions between clearing member counterparties on

February 9, 2017; the clearing obligation will be phased in for

additional transactions by type of counterparty from 2017 to 2019.\26\

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

\23\ See European Commission Delegated Regulation (EU) No. 2016/

1178, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R1178&from=EN. This regulation contains a

description of the categories of financial counterparties and non-

financial counterparties subject to the European Union's clearing

obligation. This description is substantively the same as the one

applicable to the European Union's first clearing obligation related

to interest rates swaps denominated in USD, EUR, GBP, and JPY,

including OIS with a termination date of up to three years.

\24\ European Commission press release announcing new rules on

central clearing for interest rate derivatives contracts denominated

in specific European currencies, available at: http://europa.eu/rapid/press-release_MEX-16-2171_en.htm#9. See also European

Commission Delegated Regulation (EU) No. 2016/1178, available at:

http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R1178&from=EN. The Commission notes that Poland and

Sweden are members of the European Union, but Norway is not.

Accordingly, the Commission staff has consulted separately with

staff from Norway's financial regulators regarding this clearing

requirement determination.

\25\ European Commission Delegated Regulation (EU) No. 2016/

1178, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32016R1178&from=EN.

\26\ Id. Under the European Commission Delegated Regulation (EU)

No. 2016/1178, Category 1 counterparties are clearing members of at

least one of the central counterparties authorized or recognized to

clear at least one class of mandated derivatives, as of August 9,

2016; Category 2 counterparties are entities that meet the EUR 8

billion threshold of month-end average outstanding gross notional

amounts of derivatives for a three month period, limited to

financial counterparties or alternative investment funds that are

non-financial counterparties; Category 3 counterparties are

financial counterparties and alternative investment funds that are

non-financial counterparties, that are not Category 1 or Category 2

counterparties; and Category 4 counterparties are non-financial

counterparties that do not belong in Category 1, 2, or 3.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include (1) EUR-, USD-, and GBP-denominated OIS with

termination dates ranging from two years to three years; (2) NOK-, PLN-

, and SEK-denominated fixed-to-floating interest rate swaps; and (3)

NOK-, PLN-, and SEK-denominated FRAs that are, or will soon be,

required to be cleared by the European Commission.

[[Page 71205]]

iv. Hong Kong

On February 5, 2016, the Hong Kong Securities and Futures

Commission and the Hong Kong Monetary Authority jointly published

conclusions to a consultation paper proposing mandatory clearing for

certain interest rate swaps.\27\ The Legislative Council adopted final

rules to implement a clearing mandate for transactions between certain

local and foreign-incorporated entities \28\ covering fixed-to-floating

interest rate swaps and basis swaps denominated in USD, GBP, EUR, JPY,

and HKD, as well as OIS denominated in USD, GBP, and EUR.\29\ The

clearing mandate rules became effective on September 1, 2016. Although

mandatory clearing for the designated products has not yet commenced,

the first calculation period for determining which counterparties have

an obligation to clear has begun.\30\ During the calculation period,

certain market participants have to count their transactions toward the

clearing threshold to determine whether they will be subject to Hong

Kong's clearing mandate.\31\ The first compliance date for a Hong Kong

market participant to comply with the Hong Kong authorities' clearing

mandate will be on July 1, 2017.\32\

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

\27\ Consultation Conclusions and Further Consultation on

Introducing Mandatory Clearing and Expanding Mandatory Reporting,

available at: http://www.sfc.hk/edistributionWeb/gateway/EN/consultation/conclusion?refNo=15CP4.

\28\ The Securities and Futures (OTC Derivative Transactions--

Clearing and Record Keeping Obligations and Designation of Central

Counterparties) Rules impose a clearing obligation on transactions

between prescribed persons, including local and foreign (i) licensed

corporations, (ii) authorized financial institutions, and (iii)

approved money brokers, that have reached the clearing threshold of

USD 20 billion during the applicable three month calculation period.

In addition, any transactions between such a prescribed person and a

financial services provider must also be cleared. Financial services

providers are designated by the Hong Kong Securities and Futures

Commission, with the consent of the Hong Kong Monetary Authority.

\29\ Id. See also Securities and Futures (OTC Derivative

Transactions--Clearing and Record Keeping Obligations and

Designation of Central Counterparties) Rules, The Government of the

Hong Kong Special Administrative Region Gazette, available at:

http://www.gld.gov.hk/egazette/pdf/20162005/es22016200528.pdf.

\30\ Securities and Futures (OTC Derivative Transactions--

Clearing and Record Keeping Obligations and Designation of Central

Counterparties) Rules, The Government of the Hong Kong Special

Administrative Region Gazette, available at: http://www.gld.gov.hk/egazette/pdf/20162005/es22016200528.pdf.

\31\ Id.

\32\ Id.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include HKD-denominated fixed-to-floating interest rate

swaps that will be required to be cleared by the Hong Kong Securities

and Futures Commission and the Hong Kong Monetary Authority.

v. Mexico

In 2015, Banco de M[eacute]xico, the Mexican central bank,

published a clearing mandate to require that certain Mexican financial

institutions \33\ clear MXN-denominated fixed-to-floating interest rate

swaps having a termination date range of approximately two months to 30

years and that reference the Mexican ``Interbank Equilibrium Interest

Rate'' (TIIE).\34\ The first compliance date for a Mexican market

participant to comply with the Banco de M[eacute]xico's clearing

mandate was on April 1, 2016.\35\

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

\33\ Banco de M[eacute]xico's Rules for Derivatives Transactions

(Circular 4/2012) limit the clearing mandate to transactions between

local banks, brokerage firms, and institutional investors. The Banco

de M[eacute]xico's Rules also contemplate an exemption for small

entities with notional amounts outstanding below the specified

threshold of 10 billion unidades de inversi[oacute]n.

\34\ Rules for Derivatives Transactions (Circular 4/2012), Banco

de M[eacute]xico, available at: http://www.banxico.org.mx/disposiciones/circulares/%7BD7250B17-13A4-B0B7-F4E5-04AF29F37014%7D.pdf.

\35\ Id.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include MXN-denominated fixed-to-floating interest rate

swaps that are required to be cleared by the Banco de M[eacute]xico.

vi. Singapore

In 2015, the Monetary Authority of Singapore (MAS) published

proposed regulations that would require financial institutions \36\ to

clear SGD-denominated fixed-to-floating interest rate swaps referencing

the Swap Offer Rate (SOR) and USD-denominated fixed-to-floating

interest rate swaps referencing LIBOR.\37\

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

\36\ Under MAS' proposal, the clearing mandate applies to

transactions between banks that exceed the SGD 20 billion gross

notional outstanding derivatives contract threshold for each of the

previous four calendar quarters.

\37\ Summary published by MAS available at: http://www.mas.gov.sg/News-and-Publications/Media-Releases/2015/MAS-Consults-on-Proposed-Regulations-for-Mandatory-Clearing-of-OTC-Derivatives.aspx.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include SGD-denominated fixed-to-floating interest rate

swaps that are likely to be the subject of final regulatory action by

MAS establishing a clearing requirement, which will commence in 2017.

vii. Switzerland

In 2015, the Swiss parliament adopted legislation providing a

framework for a swap clearing requirement. A clearing requirement for

certain financial counterparties and non-financial counterparties \38\

is expected to be phased in from 2016.\39\ It is not yet known exactly

which products such a clearing requirement would cover, but based on

the criteria required to be considered by the Swiss Financial Market

Supervisory Authority (Finma), Finma may determine that the CHF-

denominated fixed-to-floating interest rate swaps referencing LIBOR

should be included.\40\

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

\38\ According to guidance from the Swiss Financial Market

Supervisory Authority, derivatives transactions executed by and

among financial counterparties and non-financial counterparties that

meet the threshold requirements will be subject to the clearing

requirement. Financial counterparties meet the threshold if their

rolling averages for gross positions in outstanding derivatives

transactions (over 30 working days) are at or above CHF 8 billion.

Non-financial counterparties meet the threshold if their rolling

averages for gross positions in outstanding derivatives transactions

(over 30 working days) are at or above amounts specific to each

product (e.g., CHF 3.3 billion in interest rate derivatives

transactions).

\39\ Financial Stability Board, OTC Derivatives Market Reforms,

Eleventh Progress Report on Implementation, Appendix C

(Implementation timetable: Central clearing of standardised

transactions) (Aug. 26, 2016), available at: www.fsb.org/2016/08/otc-derivatives-market-reforms-eleventh-progress-report-on-implementation/.

\40\ See Swiss Financial Market Supervisory Authority (FINMA),

Guidance 01/2016 Financial Market Infrastructure Act: FINMA's next

steps (July 6, 2016), available at: https://www.finma.ch/en/~/media/

finma/dokumente/dokumentencenter/myfinma/4dokumentation/finma-

aufsichtsmitteilungen/20160707-finma-aufsichtsmitteilung-01-

2016.pdf?la=en.

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

As a result of this clearing requirement determination, the classes

of swaps required to be cleared under Commission regulation 50.4(a) are

expanded to include CHF-denominated fixed-to-floating interest rate

swaps that may be subject to a clearing requirement in 2017.

D. Submissions From DCOs

CME and LCH provided the Commission with regulation 39.5(b)

submissions relating to: Fixed-to-floating interest rate swaps

denominated in the nine additional currencies; AUD-denominated basis

swaps; and USD-, EUR-, and GBP-denominated OIS with termination dates

of up to 30 years. CME and LCH provided Sec. 39.5(b) submissions

pertaining to the FRAs and OIS listed in Table 1, below. CME and

[[Page 71206]]

SGX provided submissions relating to MXN- and SGD-denominated fixed-to-

floating interest rate swaps, respectively. Eurex provided a submission

relating to CHF-denominated fixed-to-floating interest rate swaps and

OIS denominated in USD, EUR, and GBP with terms up to 30 years plus 10

business days.\41\ LCH will begin offering MXN-denominated fixed-to-

floating interest rate swaps in early October 2016.\42\ Based on

representations made by CME to the Commission, the Commission believes

that CME will begin offering AUD- and CAD-denominated OIS before the

end of 2016.\43\

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

\41\ The 39.5(b) submissions are available on the Commission's

Web site at: http://www.cftc.gov/IndustryOversight/IndustryFilings/index.htm. Submission materials that a submitting DCO marked for

confidential treatment are not available for public review, pursuant

to Commission regulations 39.5(b)(5) and 145.9(d).

\42\ LCH has filed a regulation 39.5(b) submission with the

Commission as of September 23, 2016 for this swap.

\43\ Prior to offering these swaps for clearing, CME will need

to file Sec. Sec. 40.6 and 39.5(b) submissions with the Commission.

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

Table 1 summarizes the relevant interest rate swaps submitted by

CME, Eurex, LCH, and SGX.

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

\44\ Based on its regulation 39.5(b) submission, LCH will offer

clearing of MXN-denominated fixed-to-floating interest rate swaps in

early October 2016.

\45\ CME plans to offer clearing of AUD-denominated OIS interest

rate swaps before the end of 2016.

\46\ CME plans to offer clearing of CAD-denominated OIS interest

rate swaps before the end of 2016.

Table 1--Summary of Interest Rate Swap Submissions Under Regulation 39.5(b)

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

Maximum stated

Currency Floating rate index termination date CME Eurex LCH SGX

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

Fixed-to-Floating Interest Rate Swaps

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

AUD.............................. BBSW...................... 30 years............. Yes............. No.............. Yes............. *No.

CAD.............................. CDOR...................... 30 years............. Yes............. No.............. Yes............. No.

CHF.............................. LIBOR..................... 30 years............. Yes............. Yes............. Yes............. No.

HKD.............................. HIBOR..................... 10 years............. Yes............. No.............. Yes............. No.

MXN.............................. TIIE-BANXICO.............. 21 years............. Yes............. No.............. Yes \44\........ No.

NOK.............................. NIBOR..................... 10 years............. Yes............. No.............. Yes............. No.

PLN.............................. WIBOR..................... 10 years............. Yes............. No.............. Yes............. No.

SGD.............................. SOR-VWAP.................. 10 years............. Yes............. No.............. Yes............. Yes.

SEK.............................. STIBOR.................... 30 years............. Yes............. No.............. Yes............. No.

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

Basis Swaps

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

AUD.............................. BBSW...................... 30 years............. Yes............. No.............. Yes............. No.

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

Overnight Index Swaps

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

USD.............................. FedFunds.................. 30 years............. Yes............. Yes............. Yes............. No.

EUR.............................. EONIA..................... 30 years............. Yes............. Yes............. Yes............. No.

GBP.............................. SONIA..................... 30 years............. Yes............. Yes............. Yes............. No.

AUD.............................. AONIA-OIS................. 5.5 years............ No \45\......... No.............. Yes............. No.

CAD.............................. CORRA-OIS................. 2 years.............. No \46\......... No.............. Yes............. No.

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

Forward Rate Agreements

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

AUD.............................. BBSW...................... 3 years.............. Yes............. No.............. No.............. No.

NOK.............................. NIBOR..................... 2 years.............. Yes............. No.............. Yes............. No.

PLN.............................. WIBOR..................... 2 years.............. Yes............. No.............. Yes............. No.

SEK.............................. STIBOR.................... 3 years.............. Yes............. No.............. Yes............. No.

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

The Commission notes that these interest rate swaps are all single

currency swaps without optionality, as defined by the applicable DCO.

The submissions from CME, Eurex, LCH, and SGX provided the

information required by regulation 39.5(b)(3)(i)-(viii), which, along

with other information, has assisted the Commission in making a

quantitative and qualitative assessment that these swaps should be

subject to a clearing requirement determination.\47\ In making this

clearing requirement determination, the Commission considered the

ability of CME, Eurex, LCH, and SGX to clear a given swap, as well as

data supplied cumulatively from each DCO for these swaps.\48\ The

Commission also reviewed the existing rule frameworks and risk

management policies of each DCO.

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

\47\ In their submissions, CME and LCH stated that they had

provided notice of the submissions to members as required by

regulation 39.5(b)(3)(viii). SGX stated that its Sec. 39.5(b)

submission was published on its Web site. Eurex stated that it would

forward its Sec. 39.5(b) submission to its members so that they

could comment.

\48\ CME, Eurex, LCH, and SGX are eligible to clear interest

rate swaps under regulation 39.5(a).

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

Additionally, the Commission considered industry data \49\ as well

as other publicly available data sources, specifically data published

by the Bank for International Settlements (BIS), and information that

has been made publicly available pursuant to part 43 of the

Commission's regulations (part 43 Data).\50\

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

\49\ The Commission considered FIA SEF Tracker data and ISDA

SwapsInfo data.

\50\ The Commission notes that it also has access to data

pursuant to part 45 of the Commission's regulations (part 45 Data),

which is used in the cost benefit considerations in section V.

However, for the purposes of this determination, the Commission

decided to use the part 43 Data in its determination analysis in

section II.B to enable commenters to review the same data that the

Commission reviewed in making the determination. In the future, the

Commission may analyze part 45 Data and provide the public with

aggregated and anonymized summaries of such data when considering

whether other swaps should be subject to the clearing requirement.

The Commission also may refer to other non-public data sources, as

available.

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

This final rulemaking also reflects consultation with the staff of

the Securities and Exchange Commission, U.S. prudential regulators, and

international regulatory authorities. This consultation occurred prior

to the approval of the NPRM, as well as prior to the approval of this

final rulemaking by the Commission. The Commission

[[Page 71207]]

has benefitted from this close communication with its fellow

authorities throughout this rulemaking process.

Finally, the Commission considered the ten public comments received

in response to the NPRM.

E. Commission Processes for Review and Surveillance of DCOs

i. Part 39 Regulations Set Forth Standards for Compliance

Section 5b(c)(2) of the CEA sets forth 18 core principles with

which DCOs must comply to be registered and to maintain registration.

The core principles address numerous issues, including financial

resources, participant and product eligibility, risk management,

settlement procedures, default management, system safeguards,

reporting, recordkeeping, public information, and legal risk.

Each of the DCOs that submitted the interest rate swaps subject to

this rulemaking is registered with the Commission. The DCOs' regulation

39.5(b) submissions discussed herein identify swaps that the DCOs are

currently clearing and are eligible to clear under regulation 39.5(a).

Consequently, the Commission has been reviewing and monitoring

compliance by the DCOs with the core principles for clearing the

submitted swaps.

The primary objective of the Commission's supervisory program is to

ensure compliance with applicable provisions of the CEA and

implementing regulations, and, in particular, the core principles

applicable to DCOs. A primary concern of the program is to monitor and

mitigate potential risks that can arise in derivatives clearing

activities for the DCO, its members, and entities using the DCO's

services. Accordingly, the Commission's supervisory program takes a

risk-based approach, and pays particular attention to the risks posed

by stressed market conditions, and major market events, as well as

market participants' reactions to such conditions and events.

In addition to the core principles set forth in section 5b(c)(2) of

the CEA, section 5c(c) governs the procedures for review and approval

of new products, new rules, and rule amendments submitted to the

Commission by DCOs. Part 39 of the Commission's regulations implements

sections 5b and 5c(c) of the CEA by establishing specific requirements

for compliance with the core principles, as well as procedures for

registration, for implementing DCO rules, and for clearing new

products. Part 40 of the Commission's regulations sets forth additional

provisions applicable to a DCO's submission of rule amendments and new

products to the Commission.

The Commission has means to enforce compliance, including the

Commission's ability to sue the DCO in federal court for civil monetary

penalties,\51\ issue a cease and desist order,\52\ or suspend or revoke

the registration of the DCO.\53\ In addition, any deficiencies or other

compliance issues observed during ongoing monitoring or an examination

are frequently communicated to the DCO and various measures are used by

the Commission to ensure that the DCO appropriately addresses such

issues, including escalating communications within the DCO management

and requiring the DCO to demonstrate, in writing, timely correction of

such issues.

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

\51\ See section 6c of the CEA.

\52\ See section 6b of the CEA.

\53\ See section 5e of the CEA.

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

ii. Initial Registration Application Review and Periodic In-Depth

Reviews

Section 5b of the CEA requires a DCO to register with the

Commission. In order to do so, an organization must submit an

application demonstrating that it complies with the core principles.

During the review period, the Commission generally conducts an on-site

review of the prospective DCO's facilities, asks a series of questions,

and reviews all documentation received. The Commission may ask the

applicant to make changes to its rules to comply with the CEA and the

Commission's regulations.

After registration, the Commission conducts examinations of DCOs to

determine whether each DCO is in compliance with the CEA and Commission

regulations. Each examination begins with a planning phase where staff

reviews information the Commission has to determine whether the

information raises specific issues and to develop an examination plan.

The examination team participates in a series of meetings with the DCO

at its facility. Commission staff also communicates with relevant DCO

staff, including senior management, and reviews documentation. Data

produced by the DCO is independently tested. Finally, when relevant,

walk-through testing is conducted for key DCO processes.

Commission staff also reviews DCOs that are systemically important

(SIDCOs) at least once a year. Of the DCOs discussed in this

rulemaking, only CME has been determined to be a SIDCO.

iii. Commission Daily Risk Surveillance

Commission risk surveillance staff monitors the risks posed to and

by DCOs, clearing members, and market participants, including market

risk, liquidity risk, credit risk, and concentration risk. The analysis

includes review of daily, large trader reporting data obtained from

market participants, clearing members, and DCOs, which is available at

the trader, clearing member, and DCO levels. Relevant margin and

financial resources information also is included within the analysis.

Commission staff regularly conducts back testing to review margin

coverage at the product level and follows up with the relevant DCO

regarding any exceptional results. Independent stress testing of

portfolios is conducted on a daily, weekly, and ad hoc basis. The

independent stress tests may lead to individual trader reviews and/or

futures commission merchant (FCM) risk reviews to gain a deeper

understanding of a trading strategy, risk philosophy, risk controls and

mitigants, and financial resources at the trader and/or FCM level. The

traders and FCMs that have a higher risk profile are then reviewed

during the Commission's on-site review of a DCO's risk management

procedures.

Given the importance of DCOs within the financial system and the

heightened scrutiny as more transactions are moved into central

clearing, the goal of the Commission risk surveillance staff is: (1) To

identify positions in cleared products subject to the Commission's

jurisdiction that pose significant financial risk; and (2) to confirm

that these risks are being appropriately managed. Commission risk

surveillance staff undertakes these tasks at the trader level, the

clearing member level, and the DCO level. That is, staff identifies

both traders that pose risks to clearing members and clearing members

that pose risks to the DCO. Staff then evaluates the financial

resources and risk management practices of traders, clearing members,

and DCOs in relation to those risks. Commission risk surveillance staff

routinely monitors conditions in assigned markets throughout the day.

Because of the work done in identifying accounts of interest, analysts

are able to focus their efforts on those traders whose positions

warrant heightened scrutiny under current market conditions.

To gain insight into how markets operate during stressed market

conditions, an essential technique in

[[Page 71208]]

evaluating risk is the use of stress testing. Stress testing is the

practice of determining the potential loss (or gain) to a position or

portfolio based on a hypothetical price change or a hypothetical change

in a price input such as option volatility. Commission risk

surveillance staff conducts a wide array of stress tests. Some stress

tests are based on the greatest price move over a specified period of

time such as the last five years or the greatest historical price

change. Another stress testing technique is the use of ``event based''

stress testing that replicates the price changes on a particular date

in history, such as September 11, 2001, or the date that Lehman

Brothers filed for bankruptcy in 2008. Other specific events might

include Hurricane Katrina, the U.S. Board of Governors of the Federal

Reserve System's implementation of the Commercial Paper Funding

Facility as a liquidity backstop, or, most recently, the United Kingdom

(U.K.)'s vote to exit from the European Union. Price changes can be

measured as a dollar amount or a percentage change. This flexibility

can be helpful when price levels have changed by a large amount over

time. For example, the actual price changes in equity indices in

October 1987 are not particularly large at today's market levels but

the percentage changes are meaningful.

The general standard in designing stress tests is to use ``extreme

but plausible'' market moves. After identifying accounts at risk and

estimating the size of the risk, the third step is to compare that risk

to the assets available to cover it. Because stress testing, by

definition, involves extreme moves, hypothetical results will exceed

initial margin requirements on a product basis, i.e., the price moves

will be in the 1% tail. Many large traders, however, carry portfolios

of positions with offsetting characteristics. In addition, many traders

and clearing members deposit excess initial margin in their accounts.

Therefore, even under stressed conditions, in many instances the total

initial margin available may exceed potential losses or the shortfall

may be relatively small.

Each DCO maintains a financial resources package that protects the

DCO against clearing member defaults. If a clearing member defaults on

its obligations, the first layer of protection against a DCO default is

the defaulting clearing member's initial margin, as well as the

defaulting clearing member's guaranty fund contribution. The second

layer of protection against a DCO default, after the defaulting

clearing member's initial margin and guaranty fund contribution, is the

DCO's capital contribution. The third layer of protection against a DCO

default is the DCO's mutualized resources, which often include guaranty

fund contributions of non-defaulting clearing members and assessments

of non-defaulting clearing members. These layers of protection comprise

the DCO's financial resources package.

Commission risk surveillance staff compares the level of risk posed

by clearing members to a DCO's financial resources package on an

ongoing basis. Pursuant to Commission regulation 39.11(a), a DCO must

have sufficient financial resources to cover a default by the clearing

member posing the largest risk to the DCO. Pursuant to Commission

regulation 39.33(a), a SIDCO \54\ must have sufficient financial

resources to cover defaults by the clearing members posing the two

largest risks to the DCO. Commission risk surveillance staff

periodically compares stress test results with DCOs to assess their

financial capacity.

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

\54\ DCOs that elect to be covered under subpart C of part 39 of

the Commission's regulations also are subject to this requirement.

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

Commission risk surveillance staff frequently discusses the risks

of particular accounts or positions with relevant DCOs. For example, as

a follow-up to a trader review, Commission risk surveillance staff

might compare its stress test results with those of the DCO. As also

noted above, in the case of FCMs, there have been instances where, as a

result of Commission risk surveillance staff comments or inquiries,

DCOs have taken action to revise their stress tests and/or financial

resources package to align with Commission risk surveillance staff's

recommendations.

II. Comments on the Notice of Proposed Rulemaking

A. Overview of Comments Received

The Commission received 10 comment letters during the 30-day public

comment period following publication of the NPRM.\55\

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

\55\ Comment letters received in response to the NPRM may be

found on the Commission's Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1711. The following organizations

submitted comment letters: Asset Management Group of the Securities

Industry and Financial Markets Association (SIFMA AMG); ASX Clear

(Futures) Pty Limited (ASX); Better Markets Inc. (Better Markets);

Citadel LLC (Citadel); CME Group Inc. (CME Group); International

Swaps and Derivatives Association, Inc. (ISDA); Japanese Bankers

Association (JBA); LCH Group Limited (LCH Group); the Managed Funds

Association (MFA); and Scotiabank Inverlat, S.A. (Scotiabank).

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

i. Majority of Commenters Express Support for Proposal

Seven commenters (Better Markets, Citadel, CME Group, ISDA, LCH

Group, MFA, and SIFMA AMG) voiced support for the proposed expansion of

the clearing requirement and agreed with the Commission's analysis that

the expanded clearing requirement would enhance financial stability by

reducing systemic risk, improving market integrity, or increasing

transparency in the swap market. Two commenters, Scotiabank and ASX,

provided clarifying comments with respect to product specifications,

but did not express explicit support for the proposal overall. One

commenter, JBA, requested that the Commission reconsider its proposal

to expand the interest rate swaps clearing requirement in light of the

increasing number of clearing brokers withdrawing from the swaps

clearing business due to rising costs.

ii. Substantive Issues Related to Product Specifications

One commenter, Scotiabank, discussed the specifications of the MXN-

denominated fixed-to-floating interest rate swaps included in the

Commission's proposed expanded fixed-to-floating interest rate swap

class.\56\ Another commenter, ASX, addressed the Commission's proposed

inclusion of AUD-denominated FRAs in the expanded FRA class.\57\

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

\56\ See discussion of Scotiabank's comment letter in section

III.

\57\ See discussion of ASX's comment letter in sections II and

III.

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

iii. Implementation and Harmonization

Most commenters responded to the NPRM's request for comment

concerning the advantages and disadvantages of a simultaneous effective

date versus a series of compliance dates that would coordinate

implementation with clearing requirements issued by non-U.S.

jurisdictions.\58\

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

\58\ See discussion of implementation issues and related comment

letters in section IV.

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

Six commenters, CME Group, Citadel, ISDA, LCH Group, MFA, and SIFMA

AMG all supported the Commission's goal of harmonizing its clearing

requirement with those of non-U.S. jurisdictions. Citadel commented

that such harmonization would lead to the benefit of eliminating

regulatory arbitrage. LCH Group stated that such harmonization would

promote certainty for market participants. SIFMA AMG commented that

such harmonization would improve the functioning of swaps markets and

reduce operational

[[Page 71209]]

complexity. ISDA commented that harmonization is crucial to effective

and efficient implementation of all of the reforms of the derivatives

markets sought by the G20. MFA commented that the Commission's approach

to harmonizing its clearing requirement with those of other

jurisdictions would increase transparency and market integrity. MFA

also suggested that if the Commission proceeds with the expanded

clearing requirement, then other jurisdictions will follow.

iv. Data Considered by the Commission

One commenter, Citadel, complimented the Commission for assessing

the extent of outstanding notional exposures of the swaps covered by

the NPRM using multiple sources of data.\59\ Another commenter, ISDA,

suggested that the Commission review data indicating the impact of the

proposed expanded clearing requirement on market participants in

particular jurisdictions.\60\

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

\59\ See section III.B.iii.a.

\60\ See discussion of ISDA's comment letter in section II.C.ii.

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

v. Clarification

Two commenters, JBA and Scotiabank, requested clarification as to

whether the expanded clearing requirement would only apply to new swaps

entered into after the applicable compliance date and whether

previously executed swaps would be required to be ``backloaded'' to

clearing.\61\

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

\61\ See discussion of JBA's and Scotiabank's comment letters in

section III.

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

vi. Access to DCOs and Clearing Members

One commenter, JBA, raised concerns about market participants

needing to establish a clearing relationship with a new DCO in order to

comply with the expanded clearing requirement.\62\ Another commenter,

CME Group, raised concerns about the ability of relatively small market

participants to establish an account with a clearing member.\63\

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

\62\ See discussion of JBA's comment letter in sections

II.B.iii.d and V.C.

\63\ See discussion of CME Group's comment letter in section

II.C.i and section V.C.

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

vii. Trade Execution Requirement

Three comment letters discussed the possibility of a trade

execution requirement applying to some or all of the interest rate

swaps subject to this rulemaking.\64\

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

\64\ See discussion of Citadel's, ISDA's, and SIFMA AMG's

comment letters in section II.C.iii.

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

B. Determination Analysis

i. Background Information on Interest Rate Swaps

Interest rate swaps generally are agreements wherein counterparties

agree to exchange payments based on a series of cash flows over a

specified period of time, typically calculated using two different

rates, multiplied by a notional amount. As of June 2015, according to

an estimate by BIS, there was approximately $435 trillion in

outstanding notional of interest rate swaps, which represents

approximately 79% of the total outstanding notional of all

derivatives.\65\

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

\65\ Semi-Annual OTC Derivatives Statistics at End-June 2015,

published December 2015 available at: https://www.bis.org/statistics/d5_1.pdf. The BIS data provides the broadest market-wide

estimates of interest rate swap activity available to the

Commission. The Commission receives swaps market information

pursuant to parts 43 and 45 of the Commission's regulations. See

also Swap Data Recordkeeping and Reporting Requirements, 77 FR 2136

(Jan. 13, 2012); Real-Time Public Reporting of Swap Transaction

Data, 77 FR 1182 (Jan. 9, 2012). However, this data only includes

swaps subject to the Commission's jurisdiction, i.e., those swaps

subject to the CEA. The BIS data represents the broader swaps

market, some of which is not reportable to the Commission under the

CEA.

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

Section 2(h)(2)(A)(i) of the CEA provides that the Commission shall

review each swap, or any group, category, type, or class of swaps to

make a determination as to whether the swap or group, category, type,

or class of swaps should be required to be cleared. This final

rulemaking adds to the four classes of interest rate swaps that the

Commission defined in the First Clearing Requirement Determination:

1. Fixed-to-floating swaps: Swaps in which the payment or payments

owed for one leg of the swap is calculated using a fixed rate and the

payment or payments owed for the other leg are calculated using a

floating rate.

2. Basis swaps: Swaps for which the payments for both legs are

calculated using floating rates.

3. Forward rate agreements: Swaps in which payments are exchanged

on a pre-determined date for a single specified period and one leg of

the swap is calculated using a fixed rate and the other leg is

calculated using a floating rate that is set on a pre-determined date.

4. Overnight index swaps: Swaps for which one leg of the swap is

calculated using a fixed rate and the other leg is calculated using a

floating rate based on a daily overnight rate.

Interest rate swaps within the classes described above are

currently required to be cleared pursuant to regulation 50.4(a) if they

meet certain specifications: (i) Currency in which notional and payment

amounts of a swap are specified; (ii) floating rate index referenced in

the swap; and (iii) stated termination date of the swap. The Commission

also included the following three ``negative'' specifications: \66\ (i)

No optionality; (ii) no dual currencies; and (iii) no conditional

notional amounts.\67\ This clearing requirement determination analyzes

the additional interest rate swaps submitted by CME, Eurex, LCH, and

SGX according to these classifications and specifications.

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

\66\ The negative specifications are product specifications that

are explicitly excluded from the clearing requirement. All

specifications are listed in regulation 50.4(a).

\67\ The First Clearing Requirement Determination described the

term ``conditional notional amount'' as ``notional amounts that can

change over the term of a swap based on a condition established by

the parties upon execution such that the notional amount of the swap

is not a known number or schedule of numbers, but may change based

on the occurrence of some future event. This term does not include

what are commonly referred to as `amortizing' or `roller coaster'

notional amounts for which the notional amount changes over the term

of the swap based on a schedule of notional amounts known at the

time the swap is executed. Furthermore, it would not include a swap

containing early termination events or other terms that could result

in an early termination of the swap if a DCO clears the swap with

those terms.'' See 77 FR at 74302 n. 108.

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

ii. Consistency With Core Principles for Derivatives Clearing

Organizations

Section 2(h)(2)(D)(i) of the CEA requires the Commission to

determine whether a clearing requirement determination would be

consistent with the core principles for registered DCOs set forth in

section 5b(c)(2) of the CEA and implemented in part 39 of the

Commission's regulations.\68\ CME, Eurex, LCH, and SGX, each a

registered DCO, already clear the swaps identified in the regulation

39.5(b) submissions described above.\69\ Accordingly, CME, Eurex, LCH,

and SGX already are required to comply with the DCO core principles

with respect to the interest rate swaps subject to this final

rulemaking. Moreover, each of these DCOs has been, and is, subject to

the

[[Page 71210]]

Commission's review and surveillance procedures, as discussed above,

with respect to these swaps.

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

\68\ The core principles address numerous issues, including

financial resources, participant and product eligibility, risk

management, settlement procedures, default management, system

safeguards, reporting, recordkeeping, public information, and legal

risk. See sections 5b(c)(2)(A)-(R) of the CEA and 17 CFR part 39,

subparts B and C.

\69\ Currently, CME is the only registered DCO offering MXN-

denominated fixed-to-floating interest rate swaps for clearing. As

noted above, LCH has filed a Sec. 39.5(b) submission regarding this

swap and will begin offering MXN-denominated fixed-to-floating

interest rate swaps for clearing beginning in early October 2016.

Similarly, LCH is the only registered DCO clearing AUD- and CAD-

denominated OIS at this time. CME has confirmed that it intends to

file Sec. 39.5(b) submissions regarding these swaps before the end

of 2016, and it is not likely to need to change its risk management

framework to do so.

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

For the purposes of reviewing whether the regulation 39.5(b)

submissions are consistent with the DCO core principles, the Commission

has relied on both the information received in the regulation 39.5(b)

submissions and, as discussed above, its ongoing review and risk

surveillance programs.

The Commission concludes that CME, Eurex, LCH, and SGX are capable

of maintaining compliance with the DCO core principles following the

adoption of this clearing requirement determination. The Commission has

not found any evidence to conclude that subjecting any of the interest

rates swaps identified herein to a clearing requirement would adversely

affect compliance by CME, Eurex, LCH, or SGX with the DCO core

principles. In response to the NPRM, LCH Group commented on this topic,

stating that it does not believe that the clearing requirement would

adversely impact its ability to comply with the DCO core principles.

Accordingly, the Commission believes that each of the regulation

39.5(b) submissions discussed herein is consistent with section

5b(c)(2) of the CEA.

iii. Consideration of the Five Statutory Factors for Clearing

Requirement Determinations

Section 2(h)(2)(D)(ii)(I)-(V) of the CEA identifies five factors

that the Commission must ``take into account'' in making a clearing

requirement determination.\70\ In regulation 39.5(b), the Commission

developed a process for reviewing DCO swap submissions to determine

whether such swaps should be subject to a clearing requirement

determination. The following is the Commission's consideration of the

five factors as they relate to: (1) Fixed-to-floating interest rate

swaps denominated in the nine additional currencies; (2) AUD-

denominated basis swaps; (3) NOK-, PLN-, and SEK-denominated FRAs; and

(4) USD-, EUR-, and GBP-denominated OIS with termination dates of up to

three years; and AUD- and CAD-denominated OIS, as submitted by CME,

Eurex, LCH, and/or SGX pursuant to regulation 39.5(b).

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

\70\ The factors are:

(1) The existence of significant outstanding notional exposures,

trading liquidity, and adequate pricing data;

(2) The availability of rule framework, capacity, operational

expertise and resources, and credit support infrastructure to clear

the contract on terms that are consistent with the material terms

and trading conventions on which the contract is then traded;

(3) The effect on the mitigation of systemic risk, taking into

account the size of the market for such contract and the resources

of the DCO available to clear the contract;

(4) The effect on competition, including appropriate fees and

charges applied to clearing; and

(5) The existence of reasonable legal certainty in the event of

the insolvency of the relevant DCO or one or more of its clearing

members with regard to the treatment of customer and swap

counterparty positions, funds, and property.

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

As it reviewed the five statutory factors for this clearing

requirement, the Commission considered the effect a new clearing

mandate will have on a DCO's ability to withstand stressed market

conditions. The post-financial crisis reforms that have increased the

use of central clearing also have increased the importance of ensuring

that central counterparties are resilient, particularly in times of

market stress. The Commission has been working with other domestic and

international regulators to make sure that adequate measures are taken

to address the potential financial stability risks posed by central

counterparties.\71\ The Commission is focused on the financial

stability of DCOs and is committed to monitoring all potential risks

they face, including those related to increased clearing due to a new

clearing requirement determination. Accordingly, how DCOs manage risk

during times of market stress, as well as whether DCOs could manage the

incremental risk in stressed market conditions that may result from the

Commission requiring that these swaps be cleared, are critical factors

that the Commission considered in issuing this final rulemaking.

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

\71\ The Commission's Market Risk Advisory Committee hosted a

meeting on June 27, 2016, to discuss central counterparty

coordination in default management, global systemically important

bank resolution, and central counterparty resolution, webcast

available at: http://www.cftc.gov/Exit/index.htm?https:/youtu.be/fxQDh5lnh9c. See CFTC Press Release PR7386-16, announcing the

meeting agenda (June 16, 2016), available at: http://www.cftc.gov/PressRoom/PressReleases/pr7391-16.

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

a. Factor (I)--Outstanding Notional Exposures, Trading Liquidity, and

Adequate Pricing Data

The first of the five factors requires the Commission to consider

``the existence of significant outstanding notional exposures, trading

liquidity, and adequate pricing data'' related to ``a submission made

[by a DCO].'' \72\ As explained in the proposal for the First Clearing

Requirement Determination, there is no single source of data for

notional exposures and trading liquidity for individual products within

the global interest rate swap market.\73\ Despite significant progress

with regard to trade reporting over the years since the 2008 financial

crisis, this remains true. Nonetheless, the Commission has considered

multiple sources of data \74\ on the interest rate swap market that

provide the information the Commission needs to evaluate the first

factor, including: (1) Publicly available real time data disseminated

by DTCC Data Repository (U.S.) LLC (DDR), a provisionally-registered

swap data repository (SDR),\75\ pursuant to part 43 Data; (2) data from

CME, Eurex, LCH, and SGX collected in their capacities as DCOs; (3)

data from the BIS; (4) data from ISDA; and (5) data from the Futures

Industry Association (FIA).\76\

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

\72\ See section 2(h)(2)(D)(ii) of the CEA.

\73\ See 77 FR 47170, 47193 and n. 100 (Aug. 7, 2012) (citing

Bank of England, ``Thoughts on Determining Central Clearing

Eligibility of OTC Derivatives,'' Financial Stability Paper No. 14,

March 2012, at 11, available at:http://www.bankofengland.co.uk/financialstability/Documents/fpc/fspapers/fs_paper14.pdf.) As

discussed above, the Commission receives data regarding swaps

subject to its jurisdiction pursuant to parts 43 and 45 of the

Commission's regulations. The Commission also receives regular

reporting from registered DCOs, as well as its registered entities.

\74\ The Commission reviews part 43 Data, as well as data from

CME, Eurex, LCH, and SGX, on an ongoing basis. Although the part 43

Data that is included in section II.B.iii is dated as of the second

quarter 2015, Commission staff has not observed significant changes

in the level of trading activity that would cause the Commission to

change its finding that there is regular trading activity in these

markets, as well as a measurable amount of data, such that there are

significant outstanding notional exposures and trading liquidity in

the swaps subject to this determination. In addition, although the

data from DCOs presented in section II.B.iii is dated as of the

second quarter 2015, Commission staff has not observed significant

changes in the notional amounts outstanding or the aggregate

notional values of swaps being cleared that would cause the

Commission to change its finding that there are significant

outstanding notional exposures and trading liquidity in the swaps

subject to this final rulemaking. No commenters raised concerns

about this data or offered additional data.

\75\ CME SDR and BSDR LLC, each a provisionally-registered SDR,

accept data regarding interest rate swaps, but have not collected

sufficient data relevant to the time periods considered by this

determination. ICE Trade Vault, LLC, another provisionally-

registered SDR, did not accept interest rate swap data during the

time periods relevant to this final rulemaking.

\76\ In the First Clearing Requirement Determination, the

Commission also considered (i) market data published weekly by

TriOptima that covered swap trade information submitted voluntarily

by 14 large derivatives dealers and (ii) trade-by-trade data

provided voluntarily by the 14 dealers to the OTC Derivatives

Supervisors Group (ODSG). See 77 FR at 74307. The Commission is not

using these sources for the determination adopted today because

TriOptima no longer collects its data, and the ODSG data was a one-

time exercise conducted between June and August 2010.

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

[[Page 71211]]

Outstanding Notional Exposures and Trading Liquidity: Fixed-to-Floating

Interest Rate Swaps Denominated in the Nine Additional Currencies

In assessing the extent of outstanding notional exposures and

trading liquidity for a particular swap, the Commission reviews various

data series to ascertain whether there is an active market for the

swap, including whether the swap is traded on a regular basis as

reflected by trade count and whether there is a measurable amount of

notional exposures, such that a DCO can adequately risk manage the

swap. In particular, the Commission reviewed the aggregate notional

exposure and the trade count data from a number of sources for each

swap subject to this determination. While there is no defined standard

for an active market,\77\ the Commission believes the data indicates

that there are sufficient outstanding notional exposures and trading

liquidity for fixed-to-floating interest rate swaps denominated in the

nine additional currencies to support a clearing requirement

determination. The Part 43 Data presented in Table 2 generally

demonstrates that there is significant activity in new fixed-to-

floating interest rate swap trades denominated in each of the nine

additional currencies. Table 2 presents aggregate notional values and

trade counts of fixed-to-floating interest rate swaps denominated in

these currencies that were executed during the three-month period from

April 1 to June 30, 2015.\78\

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

\77\ A line of economic research papers analyzing the impact of

central clearing on liquidity in over-the-counter derivatives have

used three or more alternative methods of calculating liquidity

based on academic research. These transaction-based methods for

measuring liquidity are informative for assessing and understanding

what constitutes an active market. See Loon, Y. C. and Zhong, Z. K.,

The impact of central clearing on counterparty risk, liquidity, and

trading: Evidence from the credit default swap market. Journal of

Financial Economics, 112 (1), 91-115 (2014) at 98, available at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2176561. See also

Loon, Y. C. and Zhong, Z. K., Does Dodd-Frank affect OTC transaction

costs and liquidity? Evidence from real-time CDS trade reports.

Journal of Financial Economics, 119 (3), 645-672 (2016) at 647,

available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2443654.

\78\ The data on notional amounts the Commission receives for

interest rate swaps pursuant to part 43 is subject to caps, which

vary based on currency, reference rate, swap class (e.g., FRA vs.

OIS), and maturity of the underlying swap. As a result, the data in

Table 2 will underestimate the amount of notional outstanding for

the reported trades, as around 25% of the trades contained capped

notional amounts. See 17 CFR 43.4(h). According to the adopting

release accompanying part 43, the Commission caps notional amounts

to ensure the anonymity of the parties to a large swap and maintain

the confidentiality of business transactions and market positions.

See Real-Time Public Reporting of Swap Transaction Data, 77 FR 1182,

1213 (Jan. 9, 2012). The rules were amended in May 2013 as they

relate to caps. See Procedures to Establish Appropriate Minimum

Block Sizes for Large Notional Off-Facility Swaps and Block Trades,

78 FR 32866 (May 31, 2013).

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

The Commission notes the market for any swap is global. Even if the

bulk of the activity in a particular swap occurs between counterparties

located in a single jurisdiction, Table 2 demonstrates that there is

significant participation by U.S. persons in each of the swaps covered

by this determination.\79\ Because Table 2 is based on Part 43 Data, it

should include only data related to those swaps for which at least one

counterparty is a U.S. person.\80\

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

\79\ See also further discussion of this topic in response to a

comment from ISDA at section II.C.ii.

\80\ Under the Commission's general policy, neither part 43

reporting nor the clearing requirement apply to a swap where neither

counterparty is a U.S. person (although these requirements generally

would apply, with the possibility of substituted compliance, to

certain swaps involving foreign branches of U.S. SDs or major swap

participants (MSPs), or non-U.S. persons that are guaranteed by or

affiliate conduits of U.S. persons). See Interpretive Guidance and

Policy Statement Regarding Compliance With Certain Swap Regulations,

78 FR 45292, 45369-70 (July 26, 2013). Therefore, part 43 reporting

applies whenever at least one counterparty to a swap is a U.S.

person.

\81\ This table reflects data that was publically disseminated

by DDR and reported to it by the reporting counterparty, a swap

execution facility (SEF), or designated contract market (DCM)

pursuant to part 43. As such, the Commission did not independently

verify the accuracy of the swap data. The transactions disseminated

to the public were rounded pursuant to regulation 43.4(g). As a

result, this table may underestimate the amount of notional

outstanding for the reported trades. This table does not include

cancelled and corrected swaps that counterparties reported under

part 43. The Commission converted the notional amounts to USD

according to the exchange rates of June 30, 2015. Three other SDRs

provisionally-registered with the Commission, CME SDR, BSDR LLC, and

ICE Trade Vault LLC also accept information pursuant to part 43.

During the second quarter of 2015, none of those SDRs collected

sufficient information regarding the interest rate swaps subject to

this rulemaking.

Table 2--Part 43 Data Fixed-to-Floating Interest Rate Swaps Aggregate

Notional Amounts and Trade Counts Reported Second Quarter 2015 \81\

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

Aggregate notional

Currency (USD) Trade count

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

MXN............................... $403,621,757,132 15,492

CAD............................... 318,497,173,863 4,125

AUD............................... 322,042,446,624 4,898

SEK............................... 82,092,397,444 1,779

PLN............................... 47,267,162,195 1,463

NOK............................... 23,974,272,144 659

SGD............................... 45,618,398,397 995

CHF............................... 48,986,953,725 899

HKD............................... 21,704,787,338 469

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

Table 3.1 demonstrates the outstanding notional amounts of fixed-

to-floating interest rate swaps, denominated in each of the nine

additional currencies except for MXN, cleared at LCH as of July 17,

2015.\82\

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

\82\ As mentioned above, LCH will commence clearing fixed-to-

floating interest rate swaps denominated in MXN in October 2016.

Table 3.1--LCH Data Fixed-to-Floating Interest Rate Swaps Outstanding

Notional Amounts As of July 17, 2015 \83\

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

Outstanding notional

Currency (USD)

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

CAD............................................... $3,479,830,407,148

AUD............................................... 3,311,898,621,627

CHF............................................... 1,110,123,528,868

SEK............................................... 942,508,451,280

SGD............................................... 735,450,982,935

PLN............................................... 500,992,688,256

NOK............................................... 402,746,575,455

HKD............................................... 385,067,416,327

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

Table 3.2 describes the aggregate notional values and trade counts

of fixed-to-floating interest rate swaps denominated in these

currencies that were cleared at LCH during the three-month period from

April 1 to June 30, 2015.

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

\83\ Data includes zero coupon swaps and variable notional swaps

and excludes basis swaps, FRAs, and OIS. LCH converted values to

USD. All data from LCH cited in this rulemaking is ``single-sided,''

which means that the outstanding notional amounts correspond to the

notional amounts of swaps submitted for clearing. Single-sided

reporting from LCH, as well as data reported by CME and SGX, refers

to the same concept insofar as all modes of reporting reflect the

total notional amounts outstanding at the DCO based on the swaps

submitted for clearing. When two counterparties submit a swap to the

clearinghouse for clearing through novation, the clearinghouse

becomes the new counterparty to each of the original counterparties.

This novation process results in double-counting, and single-sided

reporting reflects the actual number of trades submitted to a

clearinghouse for clearing. See note 85 for an explanation of CME's

single-sided data. LCH publishes outstanding notional amounts of the

swaps it has cleared. See LCH's Web site, available at: http://www.swapclear.com/what/clearing-volumes.html.

Table 3.2--LCH Data Fixed-to-Floating Interest Rate Swaps Aggregate

Notional Amounts Cleared and Trade Counts \84\ Second Quarter 2015

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

Aggregate notional

Currency \85\ (USD) Trade count

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

AUD............................... $747,580,867,222 11,675

CAD............................... 591,935,914,049 8,097

SEK............................... 192,434,187,521 5,827

SGD............................... 188,573,379,738 4,872

CHF............................... 175,203,370,522 3,659

PLN............................... 99,184,390,887 4,249

NOK............................... 72,569,065,080 2,855

HKD............................... 65,655,762,520 1,868

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

[[Page 71212]]

Table 4.1 demonstratesthe outstanding notional amounts of fixed-to-

floating interest rate swaps, denominated in each of the nine

additional currencies, cleared at CME as of July 17, 2015.

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

\84\ Like the outstanding notional data, this data includes zero

coupon swaps and variable notional swaps.

\85\ The aggregate notional amounts cleared at LCH will appear

to be greater than that reflected in the part 43 Data because the

part 43 Data captures only swap data subject to the CEA, while LCH,

an entity organized in the United Kingdom, clears swaps for entities

that may not be subject to the Commission's jurisdiction. The fact

that LCH's notional amounts are higher supports this clearing

requirement determination because it suggests that there may be

greater liquidity in these swaps outside the U.S., of which DCOs

could take advantage in order successfully to risk manage and price

these swaps.

Table 4.1--CME Data Fixed-to-Floating Interest Rate Swaps Outstanding

Notional Amounts \86\ as of July 17, 2015 \87\

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

Outstanding notional

Currency (USD)

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

CAD............................................... $295,213,937,641

MXN............................................... 283,989,842,748

AUD............................................... 192,208,979,188

SEK............................................... 30,834,434,233

NOK............................................... 25,396,100,018

CHF............................................... 18,322,872,584

PLN............................................... 4,157,627,521

HKD............................................... 1,937,495,645

SGD............................................... 1,014,201,616

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

Table 4.2 describes the aggregate notional values and trade counts

of fixed-to-floating interest rate swaps denominated in these

currencies that were cleared at CME during the three-month period from

April 1 to June 30, 2015.

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

\86\ CME uses the term ``open interest'' to refer to outstanding

notional amounts. Both terms--``open interest'' and ``outstanding

notional amounts''--refer to the same concept. CME converted the

values to USD. As noted above, like the LCH data cited in this

rulemaking, all data from CME is ``single-sided,'' which means that

the outstanding notional amounts correspond to the notional amounts

of swaps submitted for clearing.

\87\ Data excludes basis swaps, FRAs, and OIS. CME publishes

open interest amounts of the swaps it has cleared. See CME's Web

site, available at: http://www.cmegroup.com/trading/interest-rates/cleared-otc/#data.

Table 4.2--CME Data Fixed-to-Floating Interest Rate Swaps Aggregate

Notional Amounts Cleared and Trade Counts Second Quarter 2015

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

Aggregate notional

Currency (USD) Trade count

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

MXN............................... $193,941,151,671 7,749

AUD............................... 51,591,005,387 1,194

CAD............................... 91,523,261,511 2,995

SEK............................... 9,712,957,726 998

NOK............................... 5,298,232,932 422

CHF............................... 2,665,840,791 173

PLN............................... 1,097,490,552 577

SGD............................... 355,136,534 32

HKD............................... 211,815,688 16

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

As of July 17, 2015, the outstanding notional amount of SGD-

denominated fixed-to-floating interest rate swaps cleared at SGX was

$58.5 billion.\88\

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

\88\ SGX converted this value from SGD to USD. This figure is

``single-sided,'' which means that the outstanding notional amount

corresponds to the notional amounts of swaps submitted for clearing.

SGX publishes outstanding notional amounts on its Web site,

available at: http://www.sgx.com.

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

As another data source, the Commission looked to BIS data. BIS'

2013 triennial central bank survey for interest rate swaps describes

the daily average notional values of interest rate swaps, including

fixed-to-floating interest rate swaps, on a worldwide basis,

denominated in each of the nine additional currencies.

Table 5--Excerpt From BIS Triennial Central Bank Survey 2013 \89\ Over-

the-Counter Single Currency Interest Rate Derivatives Turnover

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

Daily average

notional of swaps

Currency (including fixed-to-

floating), worldwide

(USD) \90\

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

AUD............................................... $62,854,000,000

CAD............................................... 26,794,000,000

SEK............................................... 14,618,000,000

MXN............................................... 9,285,000,000

CHF............................................... 5,335,000,000

SGD............................................... 3,349,000,000

NOK............................................... 2,560,000,000

PLN............................................... 2,138,000,000

HKD............................................... 1,992,000,000

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

More recently, BIS has published statistics showing significant

outstanding notional amounts for CAD-, CHF-, and SEK-denominated

interest rate swaps: Approximately $10.3 trillion CAD-denominated,

approximately $3.2 trillion CHF-denominated, and approximately $2.4

trillion SEK-denominated.\91\

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

\89\ BIS Triennial Central Bank Survey, Interest Rate

Derivatives Market Turnover in 2013, Tables 1 and 2.1-2.6 (December

2013), available at: http://www.bis.org/publ/rpfxf13irt.pdf.

\90\ Data as of April 2013. BIS converted the figures to USD.

\91\ Interest rate derivatives by instrument, counterparty, and

currency. Notional amounts outstanding, expressed in USD, at end

June 2015, available at: http://stats.bis.org/statx/srs/table/d7?p=20151&c=. This report does not provide data specific to

interest rate swaps denominated in all nine additional currencies.

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

On a daily basis, using data collected from DDR, ISDA's

``SwapsInfo'' report publishes the notional value and trade counts of

fixed-to-floating interest rate swaps denominated in four of the nine

additional currencies.\92\ For example, Table 6 shows the aggregate

notional values and trade counts of such swaps entered into on

September 15, 2015.

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

\92\ SwapsInfo provides data from two SDRs--DDR and BSDR LLC--

that is ``required to be disclosed under U.S. regulatory

guidelines.'' SwapsInfo does not provide information specific to

interest rate swaps denominated in all nine additional currencies.

The SwapsInfo referenced in Table 6 only includes information from

DDR. See SwapsInfo Web site, available at: http://www.swapsinfo.org/charts/derivatives/price-transaction.

Table 6--Excerpt From ISDA SwapsInfo Interest Rate Derivatives--Price/

Transaction Data Fixed-to-Floating Interest Rate Swaps

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

Approximate Aggregate

aggregate notional trade count

Currency amount executed on executed on

September 15, 2015 September 15,

(USD) \93\ 2015

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

AUD............................... $2,143,376,093 51

CAD............................... 1,515,366,916 30

MXN............................... 283,339,847 142

PLN............................... 141,249,743 19

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

The Commission also reviewed data published by the FIA, in its

``SEF Tracker'' report,\94\ consisting of weekly aggregate notional

values of interest rate swaps, including FRAs, denominated in various

currencies, including five of the nine additional currencies, which

have been transacted on 12 SEFs that are now registered with the

Commission.\95\ Table 7 shows the aggregate notional values of interest

rate swaps denominated in AUD, CAD, MXN, PLN, and SEK executed on SEFs

during the week of May 25, 2015, as well as such swaps denominated in

CHF, HKD, and NOK.\96\

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

\93\ The Commission converted the values to USD as of Sept. 18,

2015. ISDA SwapsInfo does not provide data for CHF-, HKD-, NOK-,

SEK-, or SGD-denominated interest rate swaps.

\94\ SEF Tracker is published periodically on FIA's Web site,

available at: https://fia.org/sef-tracker.

\95\ The SEFs include: BGC Derivatives Markets, L.P.; Bloomberg

SEF LLC; DW SEF LLC; GFI Swaps Exchange LLC; Javelin SEF, LLC; ICAP

SEF (US) LLC; ICAP Global Derivatives Limited; LatAm SEF, LLC;

Tradition SEF, Inc.; trueEx LLC; tpSEF Inc.; and TW SEF LLC. The

Commission recognizes that under section 2(h)(8) of the CEA and

Commission regulations 37.10 and 38.12, the Commission could in the

future act to adopt a trade execution requirement for some or all of

the interest rate swaps subject to the clearing requirement adopted

in this rulemaking. The adoption of a clearing requirement

determination is a prerequisite for any subsequent trade execution

requirement. See also note 76.

\96\ The published report does not contain information for CHF-,

HKD-, and NOK-denominated interest rate swaps. FIA provided figures

for those swaps to the Commission. According to FIA, no SGD-

denominated interest rate swaps were transacted on SEFs during the

week of May 25, 2015. During the week of July 26, 2015, the

aggregate notional amount of SGD-denominated interest rate swaps

executed on SEFs was $7,305,402.

[[Page 71213]]

Table 7--FIA Data Weekly Notional Volume of Interest Rate Swaps

(including FRAs) by Currency \97\

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

Aggregate weekly

notional executed

Currency on SEFs week of May

25, 2015 (USD) \98\

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

AUD............................................... $36,194,670,000

MXN............................................... 19,526,810,000

CAD............................................... 12,527,450,000

CHF............................................... 6,686,971,251

SEK............................................... 5,958,000,000

PLN............................................... 1,420,000,000

NOK............................................... 1,403,918,860

HKD............................................... 51,589,605

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

In summary, the data indicates varying levels of activity, measured

by outstanding notional amounts and trade counts, in fixed-to-floating

interest rate swaps denominated in the nine additional currencies. The

Commission acknowledges that the data comes from various, limited

periods of time that do not explicitly include periods of market

stress. However, the Commission concludes that the data demonstrates

sufficient regular trading activity and outstanding notional exposures

in the fixed-to-floating interest rate swaps denominated in the nine

additional currencies to provide the liquidity necessary for DCOs to

successfully risk manage these products and to support the adoption of

a clearing requirement. Accordingly, the Commission concludes that

there is sufficient regular trading activity and outstanding notional

exposures for all fixed-to-floating swaps subject to this rulemaking.

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

\97\ May 2015 edition of FIA SEF Tracker, available at: https://fia.org/articles/fia-releases-sef-tracker-report-may.

\98\ FIA converted the values to USD.

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

2. Outstanding Notional Exposures and Trading Liquidity: AUD-

Denominated Basis Swaps

The First Clearing Requirement Determination required the clearing

of certain USD-, EUR-, GBP-, and JPY-denominated basis swaps. As part

of this clearing requirement determination, the Commission is expanding

the basis swap class to include AUD-denominated basis swaps, as

proposed.

According to part 43 Data, 366 new AUD-denominated basis swaps were

executed during the three-month period from April 1 to June 30, 2015.

The aggregate notional amount of these swaps was $32,559,762,900.\99\

Also, during this period, there was no volume of AUD-denominated basis

swaps cleared at CME, but the outstanding notional amount in such swaps

cleared at CME as of June 30, 2015 was $69,662,645,400. During the

second quarter of 2015, 786 new AUD-denominated basis swaps were

cleared at LCH. The aggregate notional amount of these swaps was

$74,012,261,949. As of July 17, 2015, the outstanding notional amount

of AUD-denominated basis swaps cleared at CME and LCH was

$183,995,548,759 and $443,819,944,145, respectively.\100\

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

\99\ This figure comes from data that was publically

disseminated by DDR and reported to it by the reporting

counterparty, a SEF, or a DCM pursuant to part 43. As such, the

Commission did not independently verify the accuracy of the swap

data. The transactions disseminated to the public were rounded

pursuant to regulation 43.4(g). As a result, this figure may

underestimate the amount of notional outstanding for the reported

trades. This figure does not include cancelled and corrected swaps

that counterparties reported under part 43. The Commission converted

the aggregate notional amount to USD according to the exchange rates

of June 30, 2015.

\100\ CME and LCH converted these figures to USD.

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

While the data considered above comes from limited periods of time

that do not explicitly include periods of market stress, the Commission

concludes that the data demonstrates sufficient regular trading

activity and outstanding notional exposures in AUD-denominated basis

swaps to provide the liquidity necessary for DCOs to successfully risk

manage these products and to support the adoption of a clearing

requirement, as proposed. Accordingly, the Commission concludes that

there is sufficient regular trading activity and outstanding notional

exposures for AUD-denominated basis swaps subject to this rulemaking.

3. Outstanding Notional Exposures and Trading Liquidity: NOK-, PLN-,

and SEK-Denominated FRAs

The First Clearing Requirement Determination required the clearing

of certain USD-, EUR-, GBP-, and JPY-denominated FRAs. As part of the

clearing requirement determination issued today, the Commission has

decided to amend the FRA class to include only the NOK-, PLN-, and SEK-

denominated FRAs proposed.

At this time, the Commission has decided not to include AUD-

denominated FRAs as part of its expanded clearing requirement. This

decision is based on several factors. First, the Australian authorities

have postponed required clearing of AUD-denominated FRAs until July

2018.\101\ Second, ASX commented that it would not be prudent for the

Commission to finalize a clearing requirement for this product in light

of the delay in the Australian clearing requirement for this product.

Finally, ASX stated that it has observed a general trend in the

Australian domestic market away from FRAs and towards single-period

swaps instead.\102\ While there is currently a date certain on which

Australian authorities will require clearing in AUD-denominated FRAs,

the Commission is electing not to finalize its proposal with regard to

AUD-denominated FRAs, will continue to monitor the market for AUD-

denominated FRAs, and may take further action with regard to this

product as appropriate.

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

\101\ See ASIC Derivative Transaction Rules (Clearing) 2015, at

9, available at https://www.comlaw.gov.au/Details/F2015L01960.

\102\ See also Aaron Woolner, ``Australian clearing volumes

steady despite new mandate,'' Risk.net, Apr. 27, 2016, http://www.risk.net/asia-risk/news/2456034/australian-clearing-volumes-steady-despite-new-mandate (explaining that Australian dollar FRAs

present clearinghouses with an operational challenge insofar as AUD-

denominated FRAs settle and fix on the same day, which creates

problems for clearinghouses because their end-of-day process will

not complete until the start of the next Asia-Pacific trading day)

(article on file with the Commission and available upon request).

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

Table 8 presents aggregate notional amounts and trade counts of

NOK-, PLN-, and SEK-denominated FRAs executed during the second quarter

of 2015, collected by DDR.

Table 8--Part 43 Data FRAs Aggregate Notional Amounts and Trade Counts

Reported Second Quarter 2015 \103\

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

Aggregate notional

Currency (USD) Trade count

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

SEK............................... $183,646,587,508 514

NOK............................... 105,087,098,253 397

PLN............................... 14,455,487,594 103

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

Table 9.1 presents the outstanding notional amounts of NOK-, PLN-,

and SEK-denominated FRAs cleared at LCH as of July 17, 2015.

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

\103\ This table reflects data that was publically disseminated

by DDR and reported to it by the reporting counterparty, a SEF, or

DCM pursuant to part 43. As such, the Commission did not

independently verify the accuracy of the swap data. The transactions

disseminated to the public were rounded pursuant to regulation

43.4(g). As a result, this table may underestimate the amount of

notional outstanding for the reported trades. This table does not

include cancelled and corrected swaps that counterparties reported

under part 43. The Commission converted the notional amounts to USD

according to the exchange rates of June 30, 2015.

[[Page 71214]]

Table 9.1--LCH Data FRAs Outstanding Notional Amounts As of July 17,

2015

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

Outstanding notional

Currency (USD)

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

SEK............................................... $706,370,365,302

NOK............................................... 544,670,239,925

PLN............................................... 274,120,726,256

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

Table 9.2 presents the aggregate notional values and trade counts

of NOK-, PLN-, and SEK-denominated FRAs cleared at LCH during the

second quarter of 2015.

Table 9.2--LCH Data FRAs Aggregate Notional Amounts Cleared and Trade

Counts Second Quarter 2015

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

Aggregate notional

Currency (USD) Trade count

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

SEK............................... $369,900,226,814 1,600

NOK............................... 348,764,102,890 1,874

PLN............................... 232,246,791,831 1,029

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

Table 10.1 presents the outstanding notional amounts of NOK-, PLN-,

and SEK-denominated FRAs cleared at CME as of July 17, 2015.

Table 10.1--CME Data FRAs Outstanding Notional Amounts As of July 17,

2015

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

Outstanding notional

Currency (USD)

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

SEK............................................... $1,448,168,085

PLN............................................... 360,386,524

NOK............................................... 122,512,986

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

Table 10.2 presents the aggregate notional amounts and trade counts

of NOK-, PLN-, and SEK-denominated FRAs cleared at CME during the

second quarter of 2015.

Table 10.2--CME Data FRAs Aggregate Notional Amounts Cleared and Trade

Counts Second Quarter 2015 \104\

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

Aggregate notional

Currency (USD) Trade count

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

SEK............................... $1,504,300,488 6

NOK............................... 0 0

PLN............................... 0 0

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

The Commission recognizes that the part 43 Data provided in Table 8

comes from a limited period of time that does not explicitly include

periods of market stress. The Commission also notes the absence of any

clearing activity at CME in NOK- or PLN-denominated FRAs during the

second quarter of 2015. However, the Commission concludes that the part

43 Data provided in Table 8, together with the LCH data provided in

Tables 9.1 and 9.2, demonstrate sufficient regular trading activity and

outstanding notional exposures in NOK-, PLN-, and SEK-denominated FRAs

to provide the liquidity necessary for DCOs to successfully risk manage

these products and to support the adoption of a clearing requirement.

Moreover, the Commission notes that like the other products subject to

this determination, these FRAs are subject to a clearing requirement

issued by another jurisdiction, in this case the European Union.\105\

Accordingly, the Commission concludes that there is sufficient regular

trading activity and outstanding notional exposures for all FRAs

subject to this rulemaking.

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

\104\ Although there was no clearing activity in NOK- or PLN-

denominated FRAs during the second quarter of 2015, CME continues to

offer clearing of these products.

\105\ In analyzing the volume and liquidity of NOK-, PLN-, and

SEK-denominated fixed-to-floating interest rate swaps and FRAs, ESMA

concluded that there was greater volume and liquidity in products

denominated in these three currencies than in fixed-to-floating

interest rate swaps and FRAs denominated in three other currencies

(Czech koruna (CZK), Danish kroner (DKK), and Hungarian forint

(HUF)). Therefore, ESMA included the NOK-, PLN-, and SEK-denominated

products in its clearing obligation but not the CZK-, DKK-, and HUF-

denominated products. In other words, ESMA ultimately determined

that three currencies should be subject to the EU clearing

obligation and three currencies should not be, a decision with which

the European Commission concurred. See ESMA Final Report--Draft

technical standards on the clearing obligation--interest rate OTC

derivatives in additional currencies (ESMA/2015/1629, Nov. 10,

2015), available at: https://www.esma_europa.eu/sites/default/files/library/2015/11/esma-2015-1629_-_final_report_clearing_obligation_irs_other_currencies.pdf.

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

4. Outstanding Notional Exposures and Trading Liquidity: OIS With

Termination Dates of Up to Three Years; and AUD- and CAD-Denominated

OIS

The First Clearing Requirement Determination required the clearing

of certain USD-, EUR- and GBP-denominated OIS with a stated termination

date range of seven days to two years. As part of this clearing

requirement determination, the Commission is amending the maximum

termination date to three years for USD-, EUR- and GBP-denominated OIS

that have been required to be cleared pursuant to the First Clearing

Requirement Determination. This will make the Commission's OIS clearing

requirement consistent with that in effect in the European Union.\106\

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

\106\ See discussion of the pending European Union Clearing

Obligation in section I.C.

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

Table 11 presents aggregate notional values and trade counts of

USD-, EUR-, and GBP-denominated OIS with terms of two to three years

executed during the second quarter of 2015, collected by DDR.

Table 11--Part 43 Data 2-3 Year OIS Aggregate Notional Amounts and Trade

Counts Reported \107\ Second Quarter 2015

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

Aggregate notional

Currency (USD) Trade count

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

EUR............................... $7,582,189,400 47

USD............................... 4,611,000,000 32

GBP............................... 1,377,942,400 15

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

Tables 12 and 13 present the outstanding notional amounts

outstanding, the aggregate notional values cleared and trade counts, of

USD-, EUR-, and GBP-denominated OIS with terms of two to three years.

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

\107\ This table reflects data that was publically disseminated

by DDR and reported to it by the reporting counterparty, SEF, or DCM

pursuant to part 43. As such, the Commission did not independently

verify the accuracy of the swaps. The transactions disseminated to

the public were rounded pursuant to regulation 43.4(g). As a result,

this table may underestimate the amount of notional outstanding for

the reported trades. This table does not include cancelled and

corrected swaps that counterparties reported under part 43. The

Commission converted the notional amounts to USD according to the

exchange rates of June 30, 2015.

Table 12--LCH Data 2-3 Year OIS Outstanding Notional Amounts, Aggregate Notional Amounts Cleared, and Trade

Counts \108\

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

Outstanding notional Aggregate notional

Currency as of July 17, 2015 cleared second Trade count second

(USD) quarter 2015 (USD) quarter 2015

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

EUR........................................... $456,729,830,424 $369,018,669,593 1,252

[[Page 71215]]

 

GBP........................................... 91,417,244,109 64,071,802,837 187

USD........................................... 90,058,657,103 46,523,581,500 120

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

Table 13--CME Data 2-3 Year OIS Outstanding Notional Amounts, Aggregate Notional Amounts Cleared, and Trade

Counts \109\

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

Outstanding notional Aggregate notional

Currency as of July 17, 2015 cleared second Trade count second

(USD) quarter 2015 (USD) quarter 2015

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

EUR........................................... $53,456,578,566 $6,888,346,279 12

USD........................................... 151,923,747,195 9,334,544,737 6

GBP........................................... 27,764,067,455 857,520,000 4

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

As part of this clearing requirement determination, the Commission

also is adding AUD- and CAD-denominated OIS to the OIS class included

in regulation 50.4(a). This will make the Commission's OIS clearing

requirement consistent with the requirements that will begin to take

effect in Australia in October 2016 and in Canada in 2017.\110\

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

\108\ LCH converted the EUR and GBP values to USD.

\109\ CME converted the EUR and GBP values to USD.

\110\ See discussion of the Australian and Canadian swap

clearing requirements in section I.C.

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

Table 14 presents aggregate notional amounts and trade counts of

AUD- and CAD-denominated OIS executed during the second quarter of 2015

collected by DDR.

Table 14--Part 43 Data AUD- and CAD-OIS Aggregate Notional Amounts and

Trade Counts Reported \111\ Second Quarter 2015

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

Aggregate notional

Currency (USD) Trade count

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

AUD......................... $307,048,016,016 537

CAD......................... 51,645,589,883 107

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

Tables 15.1 and 15.2 present the outstanding notional amounts

outstanding, as well as aggregate notional values cleared and trade

counts, of AUD- and CAD-denominated OIS cleared at LCH.\112\

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

\111\ This table reflects data that was publically disseminated

by DDR and reported to it by the reporting counterparty, SEF, or DCM

pursuant to part 43. As such, the Commission did not independently

verify the accuracy of the swaps. The transactions disseminated to

the public were rounded pursuant to regulation 43.4(g). As a result,

this table may underestimate the amount of notional outstanding for

the reported trades. This table does not include cancelled and

corrected swaps that counterparties reported under part 43. The

Commission converted the notional amounts to USD according to the

exchange rates of June 30, 2015.

\112\ As discussed above, CME intends to begin offering to clear

AUD- and CAD-denominated OIS before the end of 2016.

\113\ LCH converted the AUD values to USD.

\114\ LCH began clearing AUD-denominated OIS on January 4, 2016.

Table 15.1--LCH Data AUD-Denominated OIS Outstanding Notional Amount, Aggregate Notional Amount Cleared, and

Trade Count \113\

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

Outstanding notional Aggregate notional

Currency as of January 15, cleared January 4-15, Trade count January 4-

2016 \114\ (USD) 2016 (USD) 15, 2016

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

AUD........................................ $25,739,497,700 $26,199,691,300 25

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

Table 15.2--LCH Data CAD-Denominated OIS Outstanding Notional Amount, Aggregate Notional Amount Cleared, and

Trade Count \115\

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

Outstanding notional Aggregate notional

Currency as of July 17, 2015 cleared second Trade count second

(USD) quarter 2015 (USD) quarter 2015

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

CAD........................................ $506,221,411,997 $216,524,096,571 260

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

[[Page 71216]]

The fact that Australian and Canadian regulators have included AUD-

and CAD-denominated OIS, respectively, in their clearing requirements

demonstrates that they believe that these swaps represent an important

part of the derivatives portfolios of Australian and Canadian banks.

The part 43 Data cited in Table 14 demonstrates that there is also

meaningful participation by U.S. swap market participants in these

swaps. For example, U.S. SDs and their affiliated entities play an

important role in the global swaps market, including in Australia and

Canada. The Commission therefore believes that it is prudent for its

clearing requirement to be consistent with those issued by other

jurisdictions, even with respect to swaps that are relatively less

frequently traded than other swaps.\116\

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

\115\ LCH converted the CAD values to USD.

\116\ See section II.C.ii for a more lengthy discussion and

analysis of BIS data with regard to U.S.-based market participants'

activity in global interest rate swap markets.

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

While the Commission recognizes that the data considered above

comes from limited periods of time that do not explicitly include

periods of market stress, the Commission concludes that the data

demonstrates sufficient regular trading activity and outstanding

notional exposures in USD-, GBP-, and EUR-denominated OIS with a

termination date range of two to three years, as well as AUD- and CAD-

denominated OIS, to provide the necessary liquidity for DCOs to

successfully risk manage these products and to support the adoption of

a clearing requirement. Accordingly, the Commission concludes that

there is sufficient regular trading activity and outstanding notional

exposures for all OIS subject to this rulemaking.

5. Pricing Data: Fixed-to-Floating Swaps Denominated in the Nine

Additional Currencies; AUD-Denominated Basis Swaps; NOK-, PLN-, and

SEK-Denominated FRAs; USD-, GBP, and EUR-OIS With Termination Dates of

up to Three Years; and AUD- and CAD-OIS

The Commission regularly reviews pricing data on the interest rate

swaps subject to this rulemaking and has found that these swaps are

capable of being priced off of deep and liquid markets. Commission

staff receives and reviews margin model information from CME, Eurex,

LCH, and SGX that addresses how such DCOs would follow particular

procedures to ensure that market liquidity exists in order to exit a

position in a stressed market, including the products subject to this

determination. In particular, Commission staff analyzes the level of

liquidity in the specific product markets and assesses the time

required to determine a price. Based on this information, the

Commission staff has no reason to believe that there is, or will be,

difficulty pricing the products subject to this determination in a

stressed environment.

Because of the stability of access to pricing data from these

markets, the pricing data for non-exotic interest rate swaps that are

currently being cleared is generally viewed as reliable. In addition,

CME, Eurex, LCH, and SGX provided information that supports the

Commission's conclusion that there is adequate pricing data to warrant

a clearing requirement for the swaps subject to this rulemaking. LCH

and CME believe there is adequate pricing data for risk and default

management. CME stated that its interest rate swap valuations are fully

transparent and rely on pricing inputs obtained from wire service

feeds. In its Sec. 39.5(b) submission, SGX asserted that the valuation

rate sources it uses, and the manner in which it determines mark-to-

market prices, are in alignment with industry practices. CME, Eurex,

LCH, and SGX obtain daily prices from third-party data providers,

clearing members, and/or major banks.

As discussed above, the Commission reviews margin models and

related pricing data submitted by CME, Eurex, LCH, and SGX. One source

of information that they use to determine adequate pricing data is a

regular survey of swap traders that asks the traders to estimate what

it would cost to liquidate positions of different sizes in different

currencies. The information obtained during these market participant

surveys is incorporated into each of CME, Eurex, LCH, and SGX's

internal margin models so that each is confident that it will be able

to withstand stressed market conditions. Establishing accurate pricing

data is one component of each of CME, Eurex, LCH, and SGX's ability to

risk manage their interest rate swaps offered for clearing. The

Commission believes that the methods used by these DCOs provide

information on pricing that is accurate and demonstrates the ability to

price the products subject to this determination successfully.

Accordingly, the Commission concludes that there is adequate pricing

data to support an extension of the clearing requirement to the swaps

subject to this rulemaking.

6. Comments Received Regarding Factor (I)

In response to the NPRM, three commenters, Better Markets, Citadel,

and CME Group agreed with the Commission's analysis of the first factor

under section 2(h)(2)(D)(ii). That is, these commenters agreed that

there is sufficient outstanding notional exposures in all of the swaps

covered by the NPRM for DCOs successfully to risk manage such swaps and

that this supports a clearing requirement determination. In its comment

letter, Citadel complimented the Commission for assessing the extent of

outstanding notional exposures using multiple sources of data. Citadel

noted further that the various sources of data the Commission

referenced in discussing the extent of outstanding notional exposures

demonstrate the variety of sources a DCO may rely on to access price

data for risk and default management purposes. In addition, Better

Markets, Citadel, and MFA commented that there is sufficient trading

activity and liquidity in the swaps subject to this rulemaking to

support a clearing requirement. MFA highlighted the fact that, as noted

in the NPRM, a significant percentage of the market already clears the

swaps voluntarily at Commission-registered DCOs. Citadel commented that

the clearing requirement would enhance liquidity in cleared instruments

to the benefit of investors. Similarly, SIFMA AMG commented that

clearing improves market liquidity.

With respect to pricing data, in their comment letters, CME Group

and LCH Group agreed with the Commission that there is sufficient

pricing data available for the swaps subject to this rulemaking such

that CME Group and LCH Group can adequately manage the risks that would

arise from the default of a clearing member. The Commission received no

other comments related to the level of outstanding notional exposures

and trading liquidity or adequacy of pricing data for the swaps subject

to this rulemaking.

For the reasons described above and in light of the comments

received, the Commission reaffirms its conclusion stated in the NPRM

that there are sufficient outstanding notional exposures and trading

liquidity, as well as adequate pricing data, to expand the clearing

requirement to include the swaps subject to this rulemaking, which are

referenced in revised regulation 50.4(a).

b. Factor (II)--Availability of Rule Framework, Capacity, Operational

Expertise and Resources, and Credit Support Infrastructure

Section 2(h)(2)(D)(ii)(II) of the CEA requires the Commission to

take into account the availability of rule

[[Page 71217]]

framework, capacity, operational expertise and resources, and credit

support infrastructure to clear the swaps subject to this rulemaking on

terms that are consistent with the material terms and trading

conventions on which they are now traded. The Commission believes that

CME, Eurex, LCH, and SGX have developed rule frameworks, capacity,

operational expertise and resources, and credit support infrastructure

to clear the interest rate swaps that they currently clear, including

those products subject to this determination, on terms that are

consistent with the material terms and trading conventions on which

those swaps are being traded.

1. Background

The Commission subjects CME, Eurex, LCH, and SGX to ongoing review

and risk surveillance programs to ensure compliance with the core

principles for the submitted swaps.\117\ As discussed above, as part of

a registered DCO's initial registration review and periodic in-depth

reviews thereafter, the Commission reviews the DCO's rule framework,

capacity, and operational expertise and resources to clear the

submitted swaps. The Commission may request that the DCO or DCO

applicant change its rules to comply with the CEA and Commission

regulations.

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

\117\ Section 5c(c) of the CEA governs the procedures for review

and approval of new products, new rules, and rule amendments

submitted to the Commission by DCOs. Parts 39 and 40 of the

Commission's regulations implement section 5c(c) by: (i)

Establishing specific requirements for compliance with the core

principles as well as procedures for registration, implementing DCO

rules, and clearing new products; and (ii) establishing provisions

for a DCO's submission of rule amendments and new products to the

Commission.

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

After registration, the Commission conducts examinations of DCOs to

determine whether the DCO is in compliance with the CEA and Commission

regulations. Moreover, Commission risk surveillance staff monitors the

risks posed to and by the DCO, in ways that include regularly

conducting back testing to review margin coverage at the product level

and following up with the DCO and its clearing members regarding any

exceptional results.

CME, Eurex, LCH, and SGX have procedures pursuant to which they

regularly review their clearing of the interest rate swaps subject to

this rulemaking in order to confirm, or make adjustments to, margins

and other risk management tools. When reviewing CME, Eurex, LCH, and

SGX's risk management tools, the Commission considers whether the DCO

is able to manage risk during stressed market conditions to be one of

the most significant considerations.

CME, Eurex, LCH, and SGX have developed detailed risk management

practices, including a description of the risk factors considered when

establishing margin levels such as historical volatility, intraday

volatility, seasonal volatility, liquidity, open interest, market

concentration, and potential moves to default, among other risks.\118\

The Commission reviews and oversees CME's, Eurex's, LCH's, and SGX's

risk management practices and development of margin models. Margin

models are further refined by stress testing and daily back testing.

When assessing whether CME, Eurex, LCH, and SGX can clear swaps safely

during stressed market conditions, stress testing and back testing are

key tools the Commission considers as well.

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

\118\ Each of CME, Eurex, LCH, and SGX has published a document

outlining its compliance with the Principles for Financial Market

Infrastructures (PFMIs) published by the Committee on Payments and

Market Infrastructures (CPMI formerly CPSS) and the International

Organization of Securities Commissions (IOSCO). See CME Clearing:

Principles for Financial Market Infrastructures Disclosure,

available at: http://www.cmegroup.com/clearing/risk-management/files/cme-clearing-principles-for-financial-market-infrastructures-disclosure.pdf. See Assessment of Eurex Clearing AG's compliance

against the CPSS-IOSCO Principles for financial market

infrastructures (PFMI) and disclosure framework associated to the

PFMIs, available at: http://www.eurexclearing.com/blob/148684/58e6fe89e3f54ebe169e530ac2235b43/data/cpss-iosco-pfmi_assessment_2014_en.pdf. See LCH's CPMI-IOSCO Self Assessment

2014, available at: http://www.lchclearnet.com/documents/731485/762558/CPMI_IOSCO_Assessment_of_LCH+ClearnetLtd+2014.pdf/45876bd6-3818-4b76-a463-2952a613c326. See SGX PFMI Disclosure Documents,

available at: http://www.sgx.com/wps/portal/sgxweb/home/clearing/derivatives/pfmi_disclosure.

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

CME, Eurex, LCH, and SGX design stress tests to simulate ``extreme

but plausible'' market conditions based on historical analysis of

product movements and/or based on hypothetical forward-looking

scenarios that are created with the assistance of market experts and

participants. Commission staff monitors and oversees the use and

development of these stress tests. CME, Eurex, LCH, and SGX conduct

stress tests daily. In addition, CME, Eurex, LCH, and SGX conduct

reverse stress testing to ensure that their default funds are sized

appropriately. Reverse stress testing uses plausible market movements

that could deplete guaranty funds and cause large losses for top

clearing members.\119\ These four DCOs analyze the results of stress

tests and reverse stress tests to determine if any changes to their

financial resources or margin models are necessary. Commission risk

surveillance staff also monitors markets in real-time, performs stress

tests against the DCOs' margin models as an additional level of

oversight, and may recommend changes to a margin model.

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

\119\ For example, CME, Eurex, LCH, and SGX may use scenarios

for stress testing and reverse stress testing that capture, among

other things, historical price volatilities, shifts in price

determinants and yield curves, multiple defaults over various time

horizons, and simultaneous pressures in funding and asset markets.

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

CME, Eurex, LCH, and SGX conduct back testing on a daily basis to

ensure that the margin models capture market movements for member

portfolios. Back testing serves two purposes: It tests margin models to

determine whether they are performing as intended and it checks whether

the margin models produce margin coverage levels that meet the DCO's

established standards. CME conducts daily back testing for each major

asset class, and SGX performs daily back testing on a contract level to

examine margin models in more detail. LCH may call additional margin

from clearing members if back testing demonstrates margin erosion. The

back testing process helps CME, Eurex, LCH, and SGX determine whether

their clearing members satisfy the required margin coverage levels and

liquidation time frame.

Before offering a new product for clearing, such as the interest

rate swaps subject to this rulemaking, CME, Eurex, LCH, and SGX take

stress tests and back testing results into account to determine whether

the clearinghouse has sufficient financial resources to offer new

clearing services. In addition, the Commission reviews margin models

and default resources to ensure that the DCOs can risk manage their

portfolio of products offered for clearing. The Commission believes

that this combination of stress testing and back testing in

anticipation of offering new products for clearing provides CME, Eurex,

LCH, and SGX with greater certainty that new product offerings will be

risk-managed appropriately. The process of stress testing and back

testing also gives the DCOs practice incorporating the new product into

their models.

In addition to the Commission's surveillance and oversight, CME,

Eurex, LCH, and SGX continue to monitor and test their margin models

over time so that they can operate effectively in stressed and non-

stressed market environments. CME, Eurex, LCH, and SGX review and

validate their margin models regularly and in the case of CME and SGX,

no less than annually. To risk manage their margin coverage levels for

interest rate swaps denominated in

[[Page 71218]]

various currencies, CME and LCH also regularly survey traders to

estimate what it would cost to liquidate positions of different sizes

in different currencies and then incorporate those costs into the

amount of initial margin that a clearing member is required to post,

and tailor their margin models to account for several attributes

specific to various currencies.

Finally, aside from margin coverage requirements, CME, Eurex, LCH,

and SGX can monitor and manage credit risk exposure by asset class,

clearing member, account, or even by individual customers. They manage

credit risk by establishing position and concentration limits based on

product type or counterparty. The Commission recognizes that these

limits reduce potential market risks so that DCOs are better able to

withstand stressed market conditions. CME, Eurex, LCH, and SGX monitor

exposure concentrations and may require additional margin deposits for

clearing members with weak credit scores, with large or concentrated

positions, with positions that are illiquid or exhibit correlation with

the member itself, and/or where the member has particularly large

exposures under stress scenarios. The ability to call for any

additional margin, on top of collecting initial and variation margin,

to meet the current DCO exposure is another tool that CME, Eurex, LCH,

and SGX may use to protect against stressed market conditions.

In support of its ability to clear the products subject to this

rulemaking, CME's Sec. 39.5(b) submissions cite to its rulebook to

demonstrate the availability of rule framework, capacity, operational

expertise and resources, and credit support infrastructure to clear

interest rate swap contracts on terms that are consistent with the

material terms and trading conventions on which the contracts are then

traded. LCH's submissions state that LCH has the capability and

expertise not only to manage the risks inherent in the current book of

interest rate swaps cleared, but also to manage the increased volume

that a clearing requirement for additional currently clearable products

could generate. SGX's submission states that SGD-denominated fixed-to-

floating interest rate swaps are cleared under an established rule

framework and operational infrastructure that has been accepted by

SGX's clearing members. SGX asserted further that it has the

appropriate risk management, operations, and technology capabilities in

place to ensure that it is able to liquidate positions in these swaps

in an orderly manner should a default occur. Similarly, Eurex's

submission states that it clears interest rate swaps pursuant to its

well-developed rule framework and support infrastructure.

Importantly, the Commission notes that CME, Eurex, LCH, and SGX

each developed their interest rate swap clearing offerings in

conjunction with market participants and in response to the specific

needs of the marketplace. In this manner, CME's, Eurex's, LCH's, and

SGX's clearing services are designed to be consistent with the material

terms and trading conventions of a bilateral, uncleared market.

When assessing whether CME, Eurex, LCH, and SGX can clear the swaps

subject to this rulemaking safely during times of market stress, the

Commission reviewed the public disclosures published by CME, Eurex,

LCH, and SGX. In addition, the Commission reviewed the risk management

practices used by these DCOs, and the Commission has determined that

the application of such practices to the products subject to this

clearing requirement determination should ensure that the products can

be cleared safely during times of market stress. Accordingly, the

Commission concludes that at each of the four DCOs discussed above,

there is an available rule framework, capacity, operations expertise

and resources, and credit support infrastructure to clear the swaps

subject to this rulemaking on terms that are consistent with the

material terms and trading conventions on which they are now traded.

2. Comments Received Regarding Factor (II)

In response to the NPRM, Citadel agreed with the Commission's

conclusion that the existing DCO rule frameworks and infrastructure are

satisfactory for clearing the swaps subject to the determination.

Citadel commented that the already significant amount of voluntary

clearing of these swaps demonstrates the suitability of the DCOs'

frameworks and infrastructures. LCH Group commented that its rule

framework, capacity, operational expertise, resources, and credit

support structure are adequate to clear the swaps covered by the

rulemaking, including during times of market stress. Similarly, CME

Group commented that it is capable of offering uninterrupted clearing

services of these swaps, even during times of market stress. Finally,

Better Markets commented that the second factor under section

2(h)(2)(D)(ii) is satisfied because registered DCOs are already

clearing the swaps subject to the NPRM in compliance with the DCO core

principles. Better Markets also urged the Commission strictly to

surveil DCOs' risk management procedures.

The Commission received no other comments related to the existence

of satisfactory DCO rule frameworks and infrastructure to support this

expanded clearing requirement determination.

For the reasons described above and in light of the comments

received, the Commission reaffirms its conclusion stated in the NPRM

that there are available rule frameworks, capacity, operations

expertise and resources, as well as credit support infrastructures

consistent with material terms and current trading conventions, to

expand the clearing requirement to include the swaps subject to this

rulemaking, which are referenced in revised regulation 50.4(a).

c. Factor (III)--Effect on the Mitigation of Systemic Risk

Section 2(h)(2)(D)(ii)(III) of the CEA requires the Commission to

take into account the effect of the clearing requirement on the

mitigation of systemic risk, taking into account the size of the market

for such contract and the resources of the DCO available to clear the

contract. The Commission believes that the market for the swaps covered

by this determination is significant and that mitigating counterparty

risk through clearing likely will reduce systemic risk in that market

generally. Data collected by SDRs demonstrates that Commission-

registered SDs are counterparties to an overwhelming majority of swaps

reported to the Commission. Because only SDs with a significant volume

of swaps activity are required to register with the Commission,\120\ by

expanding the swap clearing requirement, a greater percentage of an

SD's swap activity will be centrally cleared and risk managed. For

example, central clearing reduces the interconnectedness of the swap

positions of SDs, and other swap market participants, because the DCO,

an independent third party that takes no market risk, guarantees the

collateralization of swap counterparties' exposures. Mitigating

counterparty credit risk for SDs with systemically important swap

positions through clearing likely would reduce systemic risk in the

swap market and the financial system as a whole.\121\

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

\120\ See definition of SD, codified in Commission regulation

1.3(ggg).

\121\ In its regulation 39.5(b) submission, SGX asserts that

central clearing reduces counterparty credit risk because the

central counterparty interposes itself between the initial buyer and

seller and because clearing creates efficiencies through the

consolidation of collateral management.

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

[[Page 71219]]

In addition to managing counterparty credit risk, centrally

clearing the swaps covered by this rulemaking through a DCO will reduce

systemic risk through the following means: Providing counterparties

with daily mark-to-market valuations and exchange of variation margin

pursuant to a risk management framework; requiring posting of initial

margin to cover potential future exposures in the event of a default;

offering multilateral netting to substantially reduce the number and

notional amount of outstanding bilateral positions; reducing swap

counterparties' operational burden by consolidating collateral

management and cash flows; eliminating the need for novations or tear-

ups because clearing members may offset opposing positions; and

increasing transparency.

The Commission recognizes that the new margin requirements for

uncleared swaps for SDs and MSPs require some market participants to

post and collect margin for those swaps not subject to the Commission's

clearing requirement.\122\ Neither the Commission's nor the prudential

regulators' uncleared margin requirement was finalized at the time the

Commission issued the First Clearing Requirement Determination. As a

result, the Commission considered the clearing requirement in light of

existing market practice. Going forward, the requirement to margin

uncleared swaps in certain instances will mitigate the accumulation of

risk between counterparties in a manner similar to that of central

clearing.

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

\122\ Margin Requirements for Uncleared Swaps for SDs and MSPs,

81 FR 636 (Jan. 6, 2016) (codified in subpart E of part 23 of the

Commission's regulations) (establishing initial and variation margin

requirements for certain SDs and MSPs for which there is no

prudential regulator); and Margin and Capital Requirements for

Covered Swap Entities, 80 FR 74840 (Nov. 30, 2015) (establishing

minimum margin and capital requirements for certain registered SDs,

MSPs, security-based swap dealers, and major security-based swap

participants regulated by one of the Office of the Comptroller of

the Currency, the Board of Governors of the Federal Reserve System,

the Federal Deposit Insurance Corporation, the Farm Credit

Administration or the Federal Housing Finance Agency). See also

section V for further discussion of this issue.

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

However, the Commission believes that central clearing, including

required clearing such as that described herein, offers greater risk

mitigation than bilateral margining for swaps that are sufficiently

standardized and meet the Commission's other requirements for

suitability. First, absent any applicable exception or exemption,\123\

the clearing requirement applies to all transactions in swaps

identified in regulation 50.4, whereas, generally speaking, the new

uncleared margin requirements apply only to swaps executed between SDs

and MSPs, and between an SD or MSP and its counterparty that is a

``financial end-user.'' \124\ Second, this clearing requirement

requires all swap counterparties to post initial margin with a DCO,

whereas under the uncleared swap margin regulations, for certain swaps,

specifically those between an SD or MSP and a financial end-user,

initial margin is required to be posted and collected only if the

financial end-user (together with its affiliates) has over $8 billion

in gross notional exposures for uncleared swaps.\125\ Third, swaps

transacted through a DCO are secured by the DCO's guaranty fund and

other available financial resources, which are intended to cover

extraordinary losses that would not be covered by initial margin

(``tail risk''), whereas swaps subject to the uncleared margin

requirements are not secured by a guaranty fund or other financial

resources available to the DCO but covered by unencumbered assets of

the counterparty.

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

\123\ The exception and exemptions to the clearing requirement

are codified in subpart C to part 50 of the Commission's

regulations.

\124\ See Commission regulation 23.151 (defining financial end

user). See also Margin and Capital Requirements for Covered Swap

Entities, 80 FR at 74900 (defining financial end user for rules that

are applicable to SDs and MSPs that have a prudential regulator).

\125\ Commission regulation 23.152.

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

1. DCO Mitigation of Risk and Concentration of Risk

In their Sec. 39.5(b) submissions, CME, Eurex, and LCH stated that

subjecting interest rate swaps to central clearing helps mitigate

systemic risk. According to LCH, if all clearable swaps were required

to be cleared at a small number of central counterparties rather than

being held bilaterally by a much larger group of swap counterparties,

the robust risk management frameworks of clearinghouses, such as that

operated by LCH, would serve to reduce operational and systemic risk in

the interest rate swap market. CME stated that the 2008 financial

crisis demonstrated the potential for systemic risk arising from the

interconnectedness of over-the-counter (OTC) derivatives market

participants and asserted that centralized clearing will reduce

systemic risk.

While a clearing requirement removes a large portion of the

interconnectedness of current OTC markets that leads to systemic risk,

the Commission notes that central clearing, by its very nature,

concentrates risk in a handful of entities. Similarly, SGX, in its

Sec. 39.5(b) submission, noted that the risk reducing and other

benefits of central clearing must be weighed against the concentration

of risk in a few clearinghouses. However, the Commission observes that

central clearing was developed and designed to handle such

concentration of risk. Moreover, as discussed at length above, the

Commission's review and risk surveillance programs monitor and attempt

to mitigate potential risks that can arise in derivatives clearing

activities for the DCO, its members, and other entities using the DCO's

services.

Part of a DCO's risk management framework includes procedures for

responding in stressed circumstances, such as a clearing member's

default on its obligations. As discussed below, each of CME, Eurex,

LCH, and SGX has a procedure for closing out and/or transferring a

defaulting clearing member's positions and collateral.\126\

Transferring customer positions to solvent clearing members in the

event of a default is critical to reducing systemic risk. DCOs are

designed to withstand defaulting positions and to prevent a defaulting

clearing member's loss from spreading further and triggering additional

defaults. If the introduction of this expanded clearing requirement for

interest rate swaps increases the number of clearing members and market

participants in the swap market, then DCOs may find it easier to

transfer positions from defaulting clearing members to other clearing

members because there may be a larger pool of potential clearing

members to receive the positions. If this were to occur, then this

expanded interest rate swap clearing requirement would help to reduce

systemic risk by increasing the number of clearing members and market

participants in these swaps, which would be expected to provide DCOs

with additional recipients for defaulting clearing members' positions

in the event of a default.

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

\126\ For further discussion of treatment of customer and swap

counterparty positions, funds and property in the event of a the

insolvency of a DCO or one or more of its clearing members, please

see Factor (V)--Legal certainty in the event of insolvency. See

section II.B.iii.

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

Each DCO has experience risk managing interest rate swaps, and the

Commission has determined that each of CME, Eurex, LCH, and SGX has the

necessary resources available to clear the swaps that are the subject

of its submission. Accordingly, the Commission concludes that it has

considered the effect of the expanded clearing requirement on the

mitigation of systemic risk and found that mitigating counterparty risk

through required central clearing likely will

[[Page 71220]]

generally reduce systemic risk in the swaps markets for the products

subject to this determination.

2. Comments Received Regarding Factor (III)

Several comment letters agreed with the Commission's conclusion

that the clearing requirement would reduce systemic risk. Citadel

commented that it believes that clearing reduces systemic risk by

promoting open, efficient, and transparent markets and by reducing

interconnectedness. In its comment letter, Citadel agreed with the

Commission that central clearing does more to mitigate systemic risk

than bilateral margining requirements. Citadel noted that unlike

bilateral margining requirements, clearing eliminates the complex web

of interconnected bilateral counterparty credit exposures. Citadel also

commented that it believes that market participants benefit from the

risk and default management frameworks that clearinghouses provide,

including margin collection, end-of-day pricing, multilateral netting

and compression, and a guaranty fund.

SIFMA AMG commented that clearing promotes market integrity. Better

Markets commented that increased clearing may reduce systemic risk

because of a potential increase in the number of DCO-clearing members.

LCH Group commented that its risk management framework is calibrated to

the particular characteristics of the swaps covered by the NPRM. LCH

Group commented further that it is capable of handling any increased

risk that could result from the clearing requirement, including during

stressed market conditions.

The Commission received no other comments related to the effect of

the expanded clearing requirement on the mitigation of systemic risk.

For the reasons described above and in light of the comments

received, the Commission reaffirms its conclusion, stated in the NPRM

that CME, Eurex, LCH, and SGX would be able to manage the risks posed

by clearing the additional swaps that will be required to be cleared by

virtue of the expanded clearing requirement. In addition, the

Commission believes that the required central clearing of the interest

rate swaps subject to this rulemaking will serve to mitigate

counterparty credit risk, and might increase the number of clearing

members and market participants in these swaps, thereby potentially

reducing systemic risk. Thus, the Commission has decided to expand the

clearing requirement so that it includes the swaps subject to this

rulemaking, which are referenced in revised regulation 50.4(a).

d. Factor (IV)--Effect on Competition

Section 2(h)(2)(D)(ii)(IV) of the CEA requires the Commission to

take into account the effect on competition, including appropriate fees

and charges applied to clearing. As discussed above, of particular

concern to the Commission is whether this determination would harm

competition by creating, enhancing, or entrenching market power in an

affected product or service market, or facilitating the exercise of

market power. Market power is viewed as the ability to raise prices,

including clearing fees and charges, reduce output, diminish

innovation, or otherwise harm customers as a result of diminished

competitive constraints or incentives.

1. Competition Analysis

In the NPRM, the Commission identified one putative service market

as potentially affected by this clearing requirement determination: A

DCO service market encompassing those clearinghouses that currently

clear, or could reasonably be expected to clear, the types of interest

rate swaps subject to this rulemaking, i.e., CME, Eurex, LCH, and SGX.

Without defining the precise contours of this market, the Commission

recognizes that, depending on the interplay of several factors, this

clearing requirement determination potentially could impact competition

within the affected market.\127\ Several factors may influence whether

any impact on competition is, overall, positive or negative. Of

particular importance are: (1) Whether the demand for these clearing

services and swaps is sufficiently elastic that a small but significant

increase above competitive levels would prove unprofitable because

users of the interest rate swaps and DCO clearing services would

substitute other clearing services co-existing in the same market(s);

and (2) the potential for new entry into this market. The availability

of substitute clearing services to compete with those encompassed by

this determination, and the likelihood of timely, sufficient new entry

in the event that prices do increase above competitive levels, each

operate independently to constrain anticompetitive behavior.

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

\127\ See section II.C.ii for a further discussion of the market

for interest rate swaps.

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

Any competitive import from this determination likely would stem

from the fact that it removes the alternative of not clearing for

interest rate swaps subject to this rulemaking. On the other hand, this

clearing requirement determination does not change who may or may not

compete to provide clearing services for the interest rate swaps

subject to this rulemaking (as well as those not required to be

cleared).

Removing the alternative of not clearing is not determinative of

negative competitive impact. Other factors--including the availability

of other substitutes within the market or potential for new entry into

the market--may constrain market power. The Commission does not foresee

that this determination constructs barriers that would deter or impede

new entry into a clearing services market.\128\ Indeed, there is some

basis to expect that the determination could foster an environment

conducive to new entry. For example, this clearing requirement

determination, and the prospect that more may follow, is likely to

reinforce, if not encourage, growth in demand for clearing services.

Demand growth, in turn, can enhance the sales opportunity, a condition

hospitable to new entry.\129\

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

\128\ That said, the Commission recognizes that to the extent

the clearing services market for the interest rate swaps subject to

this rulemaking, after removing the alternative of not clearing such

swaps, would be (1) limited to a concentrated few participants with

highly aligned incentives, and (2) insulated from new competitive

entry through barriers--e.g., high sunk capital cost requirements;

high switching costs to transition from embedded incumbents; and

access restrictions--this clearing requirement determination could

have a negative competitive impact by increasing market

concentration. However, no commenters agreed with this specific

argument as articulated in the NPRM.

\129\ See, e.g., U.S. Dep't. of Justice & Fed. Trade Comm'n,

Horizontal Merger Guidelines (2010) section 9.2 (entry likely if it

would be profitable which is in part a function of ``the output

level the entrant is likely to obtain''). In addition, the

Commission notes that there are clearing organizations that clear

the swaps subject to this rulemaking that are not Commission-

registered DCOs: (1) OTC Clearing Hong Kong, which the Commission

has exempted from DCO registration and clears HKD-denominated

interest rate swaps; (2) ASX, which the Commission also has exempted

from DCO registration and clears AUD-denominated interest rate

swaps; and (3) Asigna (Mexico), which clears MXN-denominated

interest rate swaps. The Commission observes that each of these

clearing organizations would be eligible to apply for registration

as a DCO if the organization were interested in offering client

clearing to U.S. customers. Exemptions from registration are

conditioned on clearing only for U.S. proprietary accounts.

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

The Commission notes further, that while Eurex and SGX each clear

only one of the interest rate swaps subject to this rulemaking, they

are generally eligible to clear interest rate swaps under Commission

regulation under Sec. 39.5(a) and may decide to add to their interest

rate swap offerings in light of this rulemaking.

[[Page 71221]]

2. Comments Received Regarding Factor (IV)

Better Markets, Citadel, and MFA commented that the clearing

requirement would have a positive effect on competition. According to

both Citadel and Better Markets, central clearing of swaps generally

increases the range of execution counterparties, increases liquidity

and price competition, narrows bid-ask spreads, and improves access to

best execution. Similarly, MFA commented that the clearing requirement

would increase competition among potential trading counterparties and

liquidity providers by reducing counterparty credit and operational

risk and by allowing market participants to trade with a wider range of

execution counterparties. Better Markets also commented that the

clearing requirement could promote competition because it could remove

barriers to entry to the market and suggested that the clearing

requirement could enhance the ability of relatively small SDs and other

relatively small swap participants to compete with larger dealers and

participants.

Citadel commented that by eliminating bilateral counterparty credit

exposure and trading documentation, clearing can lead to market

structure innovations such as trading solutions that allow investors to

trade directly with one another instead of through intermediaries.

Citadel also commented that clearing lowers execution costs in

addition to increasing liquidity. Citadel cited academic research

published in 2016 indicating that the Commission's existing IRS

clearing requirement, together with trading reforms, have enabled swap

market participants to save as much as $20 million to $40 million per

day, with between $7 million and $13 million of the savings by market

participants being attributed to market participants that do not act as

dealers in the swaps market.\130\

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

\130\ See Citadel letter for further discussion of academic

papers and possible cost savings.

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

Two commenters, JBA and Citadel, voiced contrasting views

concerning the effects of only one DCO offering a swap subject to a

clearing requirement. JBA stated that when only one DCO offers a swap

for clearing, costs might increase for market participants to join that

DCO or enter into new client clearing arrangements with clearing

members of that DCO. JBA also commented that there may be lower

liquidity for swaps newly offered at a particular DCO.

By contrast, Citadel commented that the possibility of only one DCO

offering to clear a particular swap would not have adverse effects

because swap market participants generally prefer to clear swaps at one

DCO instead of at multiple DCOs in order to reduce costs by maximizing

netting, compression, and margin offsets. Citadel also commented that

fees charged by FCMs, rather than fees charged by DCOs, are the major

source of clearing costs.\131\ Moreover, according to Citadel, the fees

charged by FCMs depend primarily on the portfolio the customer wishes

to clear rather than on the number of DCOs offering to clear a

particular swap. Finally, Citadel commented that the clearing

requirement could lead a DCO or FCM to expand its clearing offerings

because of the increased clearing volumes that may result from the

clearing requirement. As more DCOs and/or FCMs enter the market or

expand clearing offerings, price competition would increase and costs

for customers would be expected to decrease.

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

\131\ FCMs provide their customers with access to DCOs in their

capacity as DCO clearing members.

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

With regard to JBA's comment, in light of the fact that there are

only three swaps covered by the determination that are currently

offered for clearing by solely one DCO (MXN-denominated fixed-to-

floating interest rate swaps, currently offered for clearing only at

CME; and AUD- and CAD-denominated OIS, currently offered for clearing

only at LCH), and LCH and CME have indicated that they intend to begin

offering to clear each of these swaps, respectively, before the end of

2016, the Commission believes that JBA's competitive concerns about

only one DCO offering a particular swap will be largely addressed.

While not explicitly addressing the fourth factor under section

2(h)(2)(D)(ii) of the CEA, ISDA expressed concern about how the

clearing requirement for AUD- and HKD-denominated interest rate swaps

might affect competition due to the fact that the Commission exempted

ASX and OTC Clearing Hong Kong from DCO registration, meaning that they

may clear these swaps for U.S. proprietary accounts but not for U.S.

customer accounts.\132\ As stated in note 127 above, the Commission

notes that these entities could apply to the Commission for DCO

registration in order to clear for U.S. customer accounts should they

decide to pursue that line of business at any time in the future.

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

\132\ Commission regulation 1.3(y) defines proprietary account,

and Commission regulation 1.3(gggg) defines customer account.

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

Citadel's comments suggest that extinguishing bilateral

counterparty credit exposure and eliminating complex bilateral trading

documentation for swaps subject to a clearing requirement enables

market participants to access a wider range of execution counterparties

and encourages the entry of new liquidity providers.\133\ In Citadel's

view, competition among FCMs is more relevant to ensuring that the

overall fees and charges applied to clearing are set at a reasonable

level. In addition, the imposition of a clearing requirement may itself

create the commercial rationale for another DCO or FCM to launch or

expand its clearing offering. Under this view, price competition tends

to increase, execution costs for investors and customers tend to

decrease, and overall market liquidity would therefore improve for the

swaps subject to the clearing requirement.\134\

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

\133\ Commission regulation 39.12(b)(6) requires a DCO to

establish rules providing that upon acceptance of a swap for

clearing, the original swap is extinguished and replaced by an equal

and opposite swap between the DCO and each clearing member acting as

principal for a house trade or acting as agent for a customer trade.

This process extinguishes counterparty credit risk between the

original executing counterparties.

\134\ See section V for additional discussion on the

implications of clearing fees. In the aggregate clearing fees may go

up, but clearing fees as measured by per unit cost may go down after

the implementation of a new clearing requirement determination.

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

For the reasons described above and in light of the comments

received, the Commission concludes that it has considered the effect of

the expanded clearing requirement on competition and found that it

potentially could impact competition within the affected market, but

anticompetitive behavior is likely to be constrained and demand for

clearing services is expected to grow. Accordingly, the Commission

reaffirms its conclusion stated in the NPRM that its consideration of

competitiveness is sufficient to expand the clearing requirement to

include the swaps subject to this rulemaking, which are referenced in

revised regulation 50.4(a).

e. Factor (V)--Legal Certainty in the Event of Insolvency

Section 2(h)(2)(D)(ii)(V) of the CEA requires the Commission to

take into account the existence of reasonable legal certainty in the

event of the insolvency of the relevant DCO or one or more of its

clearing members with regard to the treatment of customer and swap

counterparty positions, funds, and property. The Commission is issuing

this clearing requirement based on its view that, as stated in the

NPRM, there is reasonable legal certainty with regard to the treatment

of customer and swap counterparty positions, funds, and property in

connection with cleared

[[Page 71222]]

swaps, namely the fixed-to-floating interest rate swaps, basis swap,

OIS, and FRAs subject to this determination, in the event of the

insolvency of the relevant DCO or one or more of the DCO's clearing

members.\135\

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

\135\ In this case, the relevant DCOs are CME, LCH, and SGX. The

Commission is not discussing Eurex in terms of this factor because

Eurex's DCO registration order does not currently permit Eurex to

clear for customers. See Eurex DCO registration order, available at:

http://www.cftc.gov/idc/groups/public/@otherif/documents/ifdocs/orgdcoeurexclrorder212016.pdf.

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

1. Applicable Legal Regime--U.S.

The Commission concludes that, in the case of a clearing member

insolvency at CME, where the clearing member is the subject of a

proceeding under the U.S. Bankruptcy Code, subchapter IV of Chapter 7

of the U.S. Bankruptcy Code (11 U.S.C. 761-767) and parts 22 and 190 of

the Commission's regulations would govern the treatment of customer

positions.\136\ Pursuant to section 4d(f) of the CEA, a clearing member

accepting funds from a customer to margin a cleared swap must be a

registered FCM. Pursuant to 11 U.S.C. 761-767 and part 190 of the

Commission's regulations, the customer's interest rate swap positions,

carried by the insolvent FCM, would be deemed ``commodity contracts.''

\137\ As a result, neither a clearing member's bankruptcy nor any order

of a bankruptcy court could prevent CME from closing out/liquidating

such positions. However, customers of clearing members would have

priority over all other claimants with respect to customer funds that

had been held by the defaulting clearing member to margin swaps, such

as the interest rate swaps subject to this rulemaking.\138\ Thus,

customer claims would have priority over proprietary claims and general

creditor claims. Customer funds would be distributed to swap customers,

including interest rate swap customers, in accordance with Commission

regulations and section 766(h) of the Bankruptcy Code. Moreover, the

Bankruptcy Code and the Commission's rules thereunder (in particular 11

U.S.C. 764(b) and 17 CFR 190.06) permit the transfer of customer

positions and collateral to solvent clearing members.

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

\136\ The Commission observes that an FCM or DCO also may be

subject to resolution under Title II of the Dodd-Frank Act to the

extent it would qualify as a covered financial company (as defined

in section 201(a)(8) of the Dodd-Frank Act). Under Title II,

different rules would apply to the resolution of an FCM or DCO.

Discussion in this section relating to what might occur in the event

an FCM or DCO defaults or becomes insolvent describes procedures and

powers that exist in the absence of a Title II receivership.

\137\ If an FCM also is registered as a broker-dealer, certain

issues related to its insolvency proceeding also would be governed

by the Securities Investor Protection Act.

\138\ Claims seeking payment for the administration of customer

property would share this priority.

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

Similarly, 11 U.S.C. 761-767 and part 190 would govern the

bankruptcy of a DCO where the DCO is the subject of a proceeding under

the U.S. Bankruptcy Code, in conjunction with DCO rules providing for

the termination of outstanding contracts and/or return of remaining

clearing member and customer property to clearing members.

2. Applicable Legal Regime--U.K.

With regard to LCH, the Commission understands that the default of

a clearing member of LCH would be governed by LCH's rules. LCH, a DCO

based in the U.K., has represented that pursuant to European Union law,

LCH's rules would supersede English insolvency laws.\139\ Under its

rules, LCH would be permitted to close out and/or transfer positions of

a defaulting clearing member that is an FCM pursuant to the U.S.

Bankruptcy Code and part 190 of the Commission's regulations. According

to LCH's submission, the insolvency of LCH itself would be governed by

English insolvency law, which protects the enforceability of the

default-related provisions of LCH's rulebook, including in respect of

compliance with applicable provisions of the U.S. Bankruptcy Code and

part 190 of the Commission's regulations. LCH has obtained, and shared

with the Commission, legal opinions that support the existence of such

legal certainty in relation to the protection of customer and swap

counterparty positions, funds, and property in the event of the

insolvency of one or more of its clearing members.\140\

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

\139\ The U.K. is bound by European Union legislation, including

the Settlement Finality Directive (Council Directive 98/26/EC). The

U.K.'s implementing legislation (The Financial Markets and

Insolvency (Settlement Finality) Regulations 1999) acts to disapply,

in certain instances, national U.K. insolvency law in favor of the

rules of a designated system, and LCH has been so designated.

\140\ Letters of counsel on file with the Commission.

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

The Commission also considered the implications of the U.K.'s

recent referendum vote to withdraw from the European Union. The terms

of any such withdrawal cannot be known at this time. Negotiations have

not begun, and the U.K. has not yet given notice under Article 50 of

the Treaty on the European Union to begin the withdrawal process. Thus,

there is no indication at this time that there will be changes to the

U.K.'s financial regulation regime that is based on European Union law.

On June 24, 2016, the day after the vote, the Bank of England Governor

Mark Carney indicated that the Bank of England's responsibilities for

monetary and financial stability were unchanged by the referendum's

result.\141\ In addition, the U.K.'s Financial Conduct Authority issued

a statement confirming that U.K. financial regulation derived from

European Union legislation would ``remain applicable until any changes

are made.'' \142\

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

\141\ Bank of England, Governor Mark Carney's statement

following EU referendum result (June 24, 2016), available at: http://www.bankofengland.co.uk/publications/Documents/news/2016/056.pdf.

\142\ U.K. Financial Conduct Authority, Statement on European

Union referendum result (June 24, 2016), available at: https://www.fca.org.uk/news/european-union-referendum-result-statement.

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

LCH has advised the Commission that it does not anticipate

proposing any changes to its rulebook in light of the referendum, nor

does it anticipate any changes to applicable law at this time. The

Commission therefore expects LCH's legal opinions related to insolvency

to remain valid until further notice and expects that a default of a

clearing member of LCH will continue to be governed by LCH's rules. The

Commission will continue to monitor developments related to the U.K.

referendum.

3. Applicable Legal Regime--Singapore

With regard to SGX, the Commission understands that the default of

an SGX clearing member, or SGX itself, would be governed by Singapore

law, except for certain SGX rules relating to cleared swaps customer

collateral, as part 22 of the Commission's regulations defines that

term, which are governed by U.S. law. Like LCH, SGX has obtained, and

shared with the Commission, a legal opinion that support the existence

of such legal certainty.\143\

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

\143\ Letter of counsel on file with the Commission.

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

4. Comments Received

Better Markets and Citadel commented that they agree with the

Commission that reasonable legal certainty exists in the event of an

insolvency of a DCO or one or more of its clearing members with respect

to the interest rate swaps covered by the NPRM. Citadel noted that the

legal framework set forth in the CEA, the U.S. Bankruptcy Code, and

Commission regulations applies equally to any swap cleared by a DCO.

Citadel believes that the implementation of the Dodd-Frank Act has

strengthened this legal framework. The Commission received no other

comments related to legal certainty in the event of insolvency.

[[Page 71223]]

For the reasons described above and in light of the comments

received, the Commission reaffirms its conclusion stated in the NPRM

that reasonable legal certainty exists in the event of the insolvency

of each of the relevant DCOs or one or more of their clearing members

with regard to the treatment of customer and swap counterparty

positions, funds, and property to expand the clearing requirement so

that it includes the swaps subject to this rulemaking, which are

referenced in revised regulation 50.4(a).

C. Generally Applicable Comments

The Commission received a number of generally applicable comments

that are separated into three broad topics for discussion below: (i)

Access to DCOs, (ii) additional data considered by the Commission in

response to ISDA's request, and (iii) the Commission's trade execution

requirement.

i. Access to DCOs

JBA raised concerns about possibly needing to establish a clearing

relationship with a new DCO in order to comply with the proposed

expanded clearing requirement.\144\ In light of the fact that there are

only three swaps covered by the determination that currently are

offered for clearing by solely one DCO (MXN-denominated fixed-to-

floating interest rate swaps, currently offered for clearing only at

CME; and AUD- and CAD-denominated OIS, currently offered for clearing

only at LCH), and LCH and CME have indicated that they intend to begin

offering to clear each of these swaps, respectively, before the end of

2016, the Commission believes that JBA's concerns about a swap market

participant having to establish a new clearing arrangement even if the

participant already has a clearing arrangement in place at CME or LCH

will be largely addressed. For certain products, if market participants

do not have clearing arrangements in place at CME or LCH, they may need

to establish a new clearing arrangement (either as a clearing member or

as a customer of a clearing member) at one of those DCOs.

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

\144\ See also discussion of JBA's comment in section II.B.iii.

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

CME Group raised concerns about market participants being able to

establish an account with a clearing member. In response to comments

about access to DCOs, the Commission notes, as it did in the First

Clearing Requirement Determination, that any market participant may

petition for relief under Commission regulation 140.99 if the entity is

unable to find an FCM to clear its swaps or if it needs additional time

to complete requisite documentation.\145\

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

\145\ First Clearing Requirement Determination, 77 FR at 74320.

See also further discussion of this issue in the cost benefit

consideration section below.

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

ii. Additional Data Considered by the Commission

One commenter, ISDA, raised an issue about the type of data and

analysis included in the NPRM. In its comment letter, ISDA said that

based on the data presented in the NPRM, ``it is difficult to determine

the impact that the [clearing requirement expansion] would have on

market participants,'' particularly for ``market participants in an

individual jurisdiction.'' ISDA requested data on (1) the volume of

transactions entered into by entities subject to the CFTC's new

clearing requirement that currently enter into swaps subject to this

rulemaking on an uncleared basis, and (2) the percentage of each swap

subject to this rulemaking that is cleared voluntarily, on a

jurisdiction-by-jurisdiction basis.

The Commission notes that ISDA's suggested data analysis is not

specifically required under the five statutory factors that the

Commission must consider when making a clearing requirement

determination, as outlined in sections 2(h)(2)(D)(ii)(I)-(V) of the

CEA.\146\ Furthermore, the Commission observes that it is difficult to

determine with precision, at this point in time, what effect a new,

expanded clearing requirement will have on market participants because

some may choose to clear their transactions for the risk-reducing

benefits of clearing, regardless of whether the Commission adopts a new

clearing requirement for such swaps.\147\ Nonetheless, the Commission

considered relevant, publicly available data and conducted an analysis

in order to address, and respond to, the concerns expressed in ISDA's

comment letter. This data and analysis is described below.

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

\146\ The Commission's analysis and data used to support its

assessment of each of the five factors is discussed in section

II.B.iii.

\147\ It is also possible that some market participants would

respond to the new clearing requirement by decreasing their use of

such swaps. See also the discussion in section V.B.ii.

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

a. Data Analysis

Recognizing that the interest rate swaps market is global and

market participants are interconnected, the Commission reviewed

worldwide data collected in the BIS triennial central bank survey for

interest rate derivatives \148\ to consider further the effect that the

expanded clearing requirement could have on market participants (data

from this survey also is presented in Table 5 above). Table 16 shows

the daily average turnover of OTC single currency interest rate

derivatives, in each of the nine additional currencies, by currency and

by country.\149\

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

\148\ BIS data refers to interest rate derivatives transactions,

which include forward rate agreements, interest rate swaps, and

interest rate options. For the purposes of this discussion on BIS

data, the Commission uses the term ``interest rate derivatives''

because that is the terminology used by BIS to describe the interest

rate swaps market. A description of the instruments included in the

BIS' Triennial Survey results is included in the BIS Triennial Bank

Survey, OTC interest rate derivatives turnover in April 2013:

preliminary global results (Sept. 2013), at 14, available at http://www.bis.org/publ/rpfx13ir.pdf.

\149\ ISDA requested data based on ``jurisdiction'' and the BIS

reports its data by ``country.'' For purposes of this analysis and

discussion, the terms ``country'' and ``jurisdiction'' can be

understood to mean the same thing. Furthermore, a market for a swap

denominated in a particular currency can be understood to include

both trading in the home country for that currency and trading

outside of the home country for that currency.

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

[[Page 71224]]

[GRAPHIC] [TIFF OMITTED] TR14OC16.000

In addition to the data on a jurisdiction-by-jurisdiction basis,

Table 16 includes calculations by Commission staff \152\ presented in

order to convey the relative amount of swaps activity taking place in

each jurisdiction, as compared to other jurisdictions and the U.S.\153\

As this BIS data demonstrates, the turnover in each of the nine

additional currencies represents a small percentage of the overall

interest rate derivatives turnover in the U.S. market, especially as

compared with the USD-denominated swaps subject to the First Clearing

Requirement Determination.\154\ The data also shows that for most of

these currencies, a significant percentage of the activity in the

derivatives denominated in a particular currency occurs in the home

country that issues that currency.

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

\150\ BIS Triennial Central Bank Survey, Interest Rate

Derivatives Market Turnover in 2013, Tables 3.1-3.6 (Dec. 2013),

available at: http://www.bis.org/publ/rpfxf13irt.pdf; CFTC staff

calculations.

\151\ Data as of April 2013. BIS converted the figures to USD.

\152\ Commission staff calculated percentages reflected in

column B and rows E, G, and H.

\153\ The Commission notes that similar BIS data was presented

in ESMA's Consultation Paper on the Clearing Obligation under EMIR

(no.4), at 26, available at: https://www.esma.europa.eu/sites/default/files/library/2015/11/esma-2015-807_-_consultation_paper_no_4_on_the_clearing_obligation_irs_2.pdf.

\154\ Based on the same data from the BIS Triennial Central Bank

Survey, Interest Rate Derivatives Market Turnover in 2013, the

following represent percentages of turnover for each of the

currencies that were subject to the Commission's First Clearing

Requirement Determination: Turnover of USD-denominated interest rate

derivatives represented 86.96% of the U.S. market; turnover of EUR-

denominated interest rate derivatives represented 4.31% of the U.S.

market; turnover of GBP-denominated interest rate derivatives

represented 0.50% of the U.S. market; and turnover of JPY-

denominated interest rate derivatives represented 0.69% of the U.S.

market.

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

According to Row E in Table 16, anywhere from 18% to 70% of the

interest rate derivatives denominated in a particular currency are

transacted in the home country that issued the currency. The percentage

of activity that occurs in the home country supports the decision made

by each domestic authority to establish a clearing mandate for

particular interest rate swaps denominated in that currency. But in

each case, there also is measurable trading activity taking place

outside of the home country jurisdiction.

In terms of which market participants are trading in particular

markets, the BIS data available does not categorize the daily average

turnover by transactions entered into by U.S. or non-

[[Page 71225]]

U.S. market participants. As a result, the Commission cannot estimate

precisely what portion of these transactions would be subject to this

clearing requirement determination based on the BIS data. However, the

estimated overall percentage of activity in the U.S. is shown in Rows G

and H. In April 2013, the interest rate derivatives denominated in the

currencies subject to this rulemaking represented between 0.02% and

2.84% of the total U.S.-based interest rate derivatives market (i.e.,

the amount of daily average turnover that BIS estimated was taking

place in the U.S.). The Commission recognizes that the interest rate

derivatives transacted in the nine additional currencies do not

represent a large percentage of the overall U.S. market for interest

rate swaps, but the levels transacted are significant in the specific

market for each currency.\155\

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

\155\ For example, daily average turnover in MXN-denominated

interest rate derivatives in the U.S. represented only 1.44% of the

daily average turnover of all interest rate derivatives in the U.S.

during April 2013 but represented 74% of the MXN-denominated

interest rate derivatives market globally.

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

b. Policy Considerations

Foreign jurisdictions have expressed concern that potential market

dislocation and competitive disadvantage may result if there is no U.S.

clearing requirement covering the same swaps that are mandated to be

cleared by non-U.S. jurisdictions. This concern is driven by the fact

that a market participant's choice in counterparty may be influenced by

the existence or absence of a clearing requirement. Similarly, from the

U.S. perspective, distortion of market participants' choices could be

competitively detrimental to the extent that U.S. market participants

are subject to a clearing requirement under U.S. law, but their

competitors in a foreign jurisdiction are not. Recognizing this

concern, international authorities agreed to harmonize clearing

mandates across jurisdictions to the extent practicable and as

appropriate.\156\

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

\156\ See, e.g., Report of the OTC Derivatives Regulators Group

(ODRG) to G20 Leaders on Cross-Border Implementation Issues,

November 2015, available at: http://www.cftc.gov/idc/groups/public/@internationalaffairs/documents/file/odrgreportg20_1115.pdf (``ODRG

members previously agreed to a framework for consulting one another

on mandatory clearing determinations, with the aim of harmonizing

mandatory clearing determinations across jurisdictions to the extent

practicable and as appropriate, subject to jurisdictions'

determination procedures. Inconsistent clearing mandates across

jurisdictions may create the potential for regulatory arbitrage.

ODRG members are considering ways to enhance the existing framework

for such cooperation.'')

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

Another variable that likely is affecting decisions made by both

U.S. and non-U.S. market participants vis-[agrave]-vis central clearing

is the imposition of margin for uncleared swaps. The new uncleared

margin regulations began phasing in on September 1, 2016.\157\ To the

extent that market participants have a choice of counterparties, and

perceive the costs of maintaining uncleared transactions to be lower

than the costs of clearing, market participants may choose to transact

with counterparties that are not subject to mandatory clearing.

Conversely, if market participants view the costs of clearing as less

than the costs of margining their uncleared swaps then there will be an

incentive to clear regardless of whether it is required under CFTC

regulations or not.

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

\157\ See section V.C.ii for a discussion about the costs

related to collateralization of cleared swaps positions compared to

the costs of complying with the uncleared swap margin regulations.

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

The Commission cannot predict exactly how market participants will

be affected by the implementation of an analogous clearing requirement

in the U.S., particularly in the current environment where multiple,

changing factors, including new margin requirements, may influence a

market participant's decision about whether to clear a swap. The

Commission and its staff are committed to monitoring market activity in

order to assess the impact of its regulations on market behavior. In

its ongoing work, the Commission intends to rely on publicly available

data, such as the forthcoming BIS triennial survey, as well as the data

market participants report to SDRs under part 45 of the Commission's

regulations.

iii. Trade Execution Requirement

Three comment letters discussed the possibility of a trade

execution requirement concerning some or all of the interest rate swaps

subject to this rulemaking.\158\ ISDA expressed concern that an

expanded clearing requirement could lead to new trade execution

requirements for swaps that have limited liquidity. Consequently, ISDA

urged the Commission to take any available steps to ensure that a trade

execution requirement applies only to swaps with sufficient trading

liquidity. Finally, ISDA expressed particular concern about the

interpretation of the term ``U.S. person'' described in the

Commission's cross-border guidance concerning swaps regulations,\159\

which ISDA asserted could lead to a potentially detrimental impact on

trading liquidity outside the U.S., including possible market

fragmentation.

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

\158\ Pursuant to section 2(h)(8) of the CEA, once a swap is

subject to a Commission-issued clearing requirement, then a market

participant must execute the swap on a SEF or DCM, if a SEF or DCM

makes the swap available to trade (``made-available-to-trade''). The

Commission issued regulations 37.10 and 38.12 to implement the trade

execution requirement.

\159\ Interpretive Guidance and Policy Statement Regarding

Compliance with Certain Swap Regulations, 78 FR 45292 (July 26,

2013).

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

SIFMA AMG commented that the Commission should temporarily suspend

acceptance of ``made-available-to-trade'' submissions, under Commission

regulations 37.10 and 38.12, for swaps covered by the expanded clearing

requirement until amendments to the made-available-to-trade process

have been adopted. SIFMA AMG provided five specific comments on how the

made-available-to-trade regulations should be amended.

Finally, Citadel commented that the Commission should proceed with

finalizing the expanded clearing requirement despite the ongoing

discussions regarding a revised made-available-to-trade process.

As the Commission stated in the NPRM, pursuant to section 2(h)(8)

of the CEA and Commission regulations 37.10 and 38.12, a trade

execution requirement could, in the future, apply to some or all of the

interest rate swaps covered by this rulemaking.\160\ The process for

determining which swaps are subject to the trade execution requirement

is separate from the clearing requirement determination process.

Therefore, it is beyond the scope of this rulemaking for the Commission

to address the suitability of particular swaps for a trade execution

requirement or to address issues related to the ``made-available-to-

trade'' process.

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

\160\ 81 FR at 39516, n. 66.

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

III. Expanded and Amended Regulation 50.4(a)

The Commission promulgated regulation 50.4 in 2012 when it issued

the First Clearing Requirement Determination, which applied to certain

interest rate swaps and credit default swaps.\161\ Regulation 50.4 sets

forth the basic specifications of the classes of swaps that the

Commission requires to be cleared in order to allow counterparties

contemplating entering into a swap to quickly determine whether or not

the particular swap may be subject to a clearing requirement.\162\

Paragraph (a) of regulation 50.4 sets forth the four classes of

interest rate

[[Page 71226]]

swaps that are currently required to be cleared.

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

\161\ First Clearing Requirement Determination, 77 FR 74284

(Dec. 13, 2012).

\162\ Id.

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

For the reasons discussed above, the Commission has decided to

expand regulation 50.4(a) as proposed, with the exception of not

adopting a requirement to clear AUD-denominated FRAs. Thus the

Commission is adopting amendments to regulation 50.4(a) as follows: (i)

Adding fixed-to-floating interest rate swaps denominated in the nine

additional currencies; (ii) adding AUD-denominated basis swaps; (iii)

adding NOK-, PLN-, and SEK-denominated FRAs; (iv) changing the maximum

stated termination date for USD-, GBP-, and EUR-denominated OIS to

three years from two years; and (v) adding AUD- and CAD-denominated

OIS. The specifications of the swaps set forth in revised regulation

50.4(a) are consistent with those that are the subject of clearing

requirements proposed or issued by other jurisdictions.\163\

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

\163\ See discussion of clearing requirements in other

jurisdictions in section I.C.

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

In its comment letter, Scotiabank suggested that four of the

specifications in proposed regulation 50.4(a) describing MXN-

denominated fixed-to-floating interest rate swaps should be finalized

differently from the specifications proposed. For the reasons described

below, the Commission has decided to finalize the specifications as

proposed.

First, Scotiabank suggested that the floating rate index should be

described as ``TIIE 28'' instead of ``TIIE'' \164\ because the Mexican

clearing requirement covers swaps referencing the 28-day average

Mexican interbank interest rate. The Commission agrees that ``TIIE 28''

is the rate referenced in the Mexican clearing requirement, and it is

also the rate to which amended regulation 50.4(a) is intended to refer.

The Commission understands that (1) the 28-day average is the rate

referenced by the MXN-denominated fixed-to-floating interest rate swaps

accepted for clearing at CME; and (2) the 28-day average is the rate

specified in the MXN-denominated fixed-to-floating interest rate swaps

that will be offered for clearing at LCH. Therefore, the Commission

intends for ``TIIE-BANXICO'' in amended regulation 50.4(a) to refer to

the 28-day TIIE.\165\ However, the Commission is opting to finalize the

description of that rate without specifying the particular version of

floating rates because it has not done so with regard to the other

rates referenced in regulation 50.4(a), such as 3-month LIBOR or 6-

month LIBOR.

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

\164\ ``TIIE'' refers to the Mexican interbank equilibrium

interest rate.

\165\ In this final rulemaking, regulation 50.4(a) is amended to

specify the ``TIIE-BANXICO'' rate instead of ``TIIE,'' as was

proposed in the NPRM. CME's regulation 39.5(b) submission specified

the ``TIIE-BANXICO'' rate. LCH's offering in MXN-denominated fixed-

to-floating swaps will reference this same rate. The Commission

observes that ``TIIE'' and ``TIIE-BANXICO'' both refer to the same

rate; ``BANXICO'' simply refers to the Banco de Mexico, which

calculates the ``TIIE.''

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

Second, Scotiabank commented that the maximum termination date

range for MXN-denominated fixed-to-floating interest rate swaps covered

by expanded regulation 50.4(a) should be 30 years in order to match the

exact product specifications of the Mexican clearing requirement,

instead of 21 years, as the Commission proposed. The Commission notes

that CME, the only registered DCO currently offering to clear these

swaps, offers to clear swaps having a maximum term of 21 years.

Therefore, the Commission is finalizing the termination date range as

proposed.

Third, Scotiabank suggested that MXN-denominated fixed-to-floating

interest rate swaps subject to the Commission's clearing requirement

should cover only swaps having notional amounts in multiples of MXN

100,000 because Asigna, a Mexican clearinghouse, offers to clear only

swaps having such notional amounts.\166\ However, because CME's product

specifications do not limit clearing MXN-denominated fixed-to-floating

interest rate swaps to notional amounts in multiples of MXN 100,000,

the Commission does not believe that it is necessary to limit

regulation 50.4(a) in this manner.

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

\166\ Asigna is not a Commission-registered DCO, and the

Commission has not exempted Asigna from registration under section

5b(h) of the CEA.

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

Fourth, Scotiabank suggested that the MXN-denominated fixed-to-

floating interest rate swaps subject to the Commission's clearing

requirement should contain an exception for counterparties having ``low

net exposure,'' in order to match the Mexican clearing requirement. As

an initial matter, section 2(h) of the CEA defines the participant

scope of the Commission's clearing requirement: All swap market

participants are expected to comply with a Commission-issued clearing

requirement, except for certain non-financial end-users.\167\ The

Commission has implemented this statutory exception, along with other

limited exemptions, in subpart C of part 50. This statutory and

regulatory framework does not contemplate exclusions based on level of

market activity, and the Commission believes it would not be

appropriate to deviate from this framework for the MXN-denominated

fixed-to-floating interest rate swaps subject to this rulemaking.

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

\167\ Section 2(h)(7) of the CEA.

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

In their comment letters, JBA and Scotiabank requested confirmation

that a market participant subject to the expanded clearing requirement

would be required to clear swaps subject to this final rulemaking that

are executed on or after the effective date of the final rulemaking,

but not be required to backload swaps executed prior to that date. In

response to this comment, the Commission confirms, as it did in the

First Clearing Requirement Determination, that market participants will

not be required to clear swaps subject to this rulemaking that are

executed prior to the effective date of this final rulemaking.\168\ In

addition, the Commission will not require the backloading of swaps

subject to this rulemaking that are executed after the effective date

but before the applicable compliance date for this final rulemaking.

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

\168\ See Commission regulation 50.5(b) (exempting from required

clearing those swaps that are entered into after July 21, 2010 (the

enactment date of the Dodd-Frank Act) but ``before the application

of the clearing requirement for a particular class of swaps under

Sec. Sec. 50.2 and 50.4 of this part''). See also implementation

schedule described in section IV.

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

IV. Implementation Schedule

In the NPRM, the Commission stated that it did not intend to rely

upon its schedule for phasing-in the clearing requirement by market

participant type, as codified in Commission regulation 50.25 and relied

upon for the First Clearing Requirement Determination. The Commission

further proposed two alternative methods for establishing a CFTC

clearing requirement compliance date.

The Commission received comments on four aspects of the overall

proposed implementation schedule. First, commenters discussed whether

the Commission should offer a compliance date phase-in by market

participant type. The Commission addresses these comments in section

IV.A below. Second, commenters discussed whether the Commission should

adopt a single compliance date for all products subject to this

determination, or whether the Commission should adopt compliance dates

based on the effective date of a non-U.S. jurisdiction's clearing

mandate. The Commission addresses these comments in section IV.B below.

Third, commenters requested clarifications on a number of discrete

points related to the implementation schedule. The Commission addresses

these comments in section IV.C below. Finally, commenters discussed

whether

[[Page 71227]]

the Commission should change the scope of its clearing requirement to

match the categories of market participants that are required to clear

the products under a non-U.S. jurisdiction's clearing requirement. The

Commission addresses these comments in section IV.D below.

A. No Compliance Date Phase-In by Type of Market Participant

The Commission proposed adopting one compliance date for all market

participant types, rather than rely on the phase-in schedule codified

in regulation 50.25.\169\ The Commission has decided that because many

market participants are currently clearing the products subject to this

determination and because the Commission previously adopted a clearing

requirement determination for the class of interest rate swaps subject

to this final rulemaking, there is no need to phase-in the compliance

dates by type of market participant.\170\ A number of commenters agreed

with the Commission's position and advocated for a compliance date

without a phase-in by market participant type.

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

\169\ See Swap Transaction Compliance and Implementation

Schedule: Clearing Requirement Under Section 2(h) of the CEA, 77 FR

44441 (July 30, 2012), [hereinafter referred to as the

Implementation Release].

\170\ In the Implementation Release, the Commission stated that

the ``use of the schedule contained in this [release] is at the

Commission's discretion; in situations where the Commission

determines that the benefits of delayed implementation do not

justify the additional costs of such a delay, the Commission may

require immediate compliance. . . .'' 77 FR 44441, 44450 (July 30,

2012).

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

i. Comments Received

MFA supported the Commission's proposal not to phase-in the

compliance date by market participant type and agreed that market

participants are ready, willing, and able to clear the swaps subject to

this rulemaking. Citadel agreed with the Commission's position that the

phase-in by counterparty type is not necessary. Citadel pointed out

that because market participants, in most cases, have established

clearing arrangements with DCOs and are familiar with the process of

central clearing, there is no need to delay compliance dates by

including a phase-in by market participant type. LCH Group commented

that while the use of a compliance date phase-in by market participant

type was successful in connection with the Commission's First Clearing

Requirement Determination, it would not be equally beneficial in this

context.

Of the two commenters that requested a compliance date phase-in by

market participant type, one thought that market participants would be

unable to comply with the clearing requirement in the time frame

established. ISDA urged the Commission to adopt an implementation

schedule that incorporates the 270-day phase-in schedule outlined in

Commission regulation 50.25. ISDA expressed concern about the

consequences for entities that currently may not be subject to an

analogous clearing mandate outside of the U.S. in terms of addressing

legal, documentation, operational, and other considerations. SIFMA AMG

also recommended that the Commission use a phase-in schedule by market

participant type, but did not specify a reason for this recommendation.

The Commission recognizes that the compliance date phase-in by

market participant type was beneficial in the context of the First

Clearing Requirement Determination. However, because market

participants are experienced in clearing USD, EUR, GBP, and/or JPY-

denominated interest rate swaps and there is a substantial amount of

voluntary clearing activity in the swaps subject to this rulemaking,

the Commission has decided that there is no need to phase-in the

compliance dates for this clearing requirement by market participant

type in accordance with regulation 50.25 or otherwise. Regulation 50.25

provides the Commission with the discretion to phase in compliance.

Regulation 50.25(b) provides that upon issuing a clearing requirement

determination under section 2(h)(2) of the CEA, the Commission may

determine, based on the group, category, type, or class of swaps

subject to such determination, that the specified schedule for

compliance with the requirements of section 2(h)(1)(A) of the CEA shall

apply.

A broad cross-section of market participants, including both direct

clearing members and their clients or customers, has experience

clearing the four classes of interest rate swaps under regulation

50.4(a) and has been clearing certain swaps subject to this final

rulemaking on a voluntary basis. The Commission believes that most

market participants that would be subject to the expanded clearing

requirement already clear, or have clearing service arrangements in

place to clear, the types of interest rate swaps subject to the

existing clearing requirement. The Commission does not expect that

these types of market participants, for the most part, would need to

establish connectivity to DCOs, document new client clearing

arrangements, or otherwise prepare themselves and/or their customers in

order to comply with this clearing requirement determination as they

may have needed to do in order to comply with the First Clearing

Requirement Determination. The Commission will consider carefully any

concerns raised by market participants that cannot gain access to a DCO

in order to clear swaps subject to this rulemaking before an applicable

compliance date.

The Commission received similar comments concerning the difficulty

market participants may have in accessing DCOs and establishing

relationships with FCMs at the time it was considering the First

Clearing Requirement Determination. In response to those comments, the

Commission noted that ``any market participant may petition for relief

under regulation 140.99 if that entity is unable to find an FCM to

clear its swaps or if it needs additional time to complete requisite

documentation.'' \171\ If a market participant is unable to find an FCM

to clear its swaps, the Commission reaffirms the fact that market

participants may petition for relief under regulation 140.99.\172\

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

\171\ First Clearing Requirement Determination, 77 FR at 74320

and n.172.

\172\ Commission regulation 140.99 sets forth the process for

addressing requests for exemptive, no-action, and interpretative

letters.

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

B. Compliance Date Tied to a Non-U.S. Jurisdiction Clearing Requirement

The Commission proposed two alternative implementation scenarios in

the NPRM. Under the first scenario, all swaps subject to this

rulemaking would be required to be cleared on the same date--60 days

after the final rulemaking is published in the Federal Register

(Scenario I). Under the second scenario, the compliance date for each

swap product would be the earlier of: (a) 60 days after the effective

date of an analogous clearing mandate adopted by a regulator in a non-

U.S. jurisdiction, provided that such requirement would not be

effective until at least 60 days after the Commission's final rule is

published in the Federal Register, and (b) two years after the

Commission's final rule is published in the Federal Register (Scenario

II).

After reviewing comments on the two implementation scenarios

proposed, the Commission has determined that it will adopt Scenario II

and will tie the CFTC's compliance date for each product to the first

compliance date for a market participant in a non-U.S. jurisdiction.

[[Page 71228]]

i. Comments Received

The Commission received eight comments on whether to implement

Scenario I or Scenario II. MFA supported Scenario I because it would

allow the Commission to move forward promptly with expanding the

clearing requirement for the products subject to this determination.

MFA noted that Scenario II was a reasonable option, but preferred

Scenario I. Citadel stated that Scenario I was realistic and concluded

that most market participants were prepared for the clearing

requirement and had infrastructure in place to comply. Scenario I

received support for its simple application and because it would bring

the clearing requirement into force for certain products more quickly

than under Scenario II. While the Commission agrees with these points,

and notes that Scenario I would provide market participants with

certainty and simplicity, it has decided to adopt Scenario II.

To the extent practicable, the Commission believes it is important

to account for non-U.S. jurisdictions' timelines for mandating clearing

when imposing a compliance date for U.S. market participants. The

implementation schedule under Scenario II will provide flexibility for

market participants, will facilitate compliance by phasing-in the

clearing requirement by specific product, and will further the

Commission's goals of harmonizing clearing requirements with those

abroad.

Six commenters supported adoption of implementation Scenario II.

JBA requested that the Commission adopt Scenario II in order to promote

market liquidity and stability and to harmonize with clearing

requirements issued by non-U.S. jurisdictions. ASX advocated for the

Commission to adopt Scenario II to minimize any potential disruptions

caused by differences in implementation timing of clearing mandates

across jurisdictions. ISDA preferred Scenario II on the grounds that it

would promote global harmonization and is consistent with maximizing

liquidity and reducing risk. SIFMA AMG recommended Scenario II because

it would further the Commission's efforts to harmonize with other

jurisdictions. LCH Group agreed with the Commission that Scenario II

would provide flexibility and certainty and would foster further

international harmonization of adoption of clearing requirements.

Finally, CME Group stated that the Commission should work cooperatively

with regulators in other jurisdictions and that it supports the

extension of the Commission's clearing requirement determination where

it is necessary for global harmonization.

The Commission has determined that Scenario II will be used to

determine compliance dates for market participants subject to the

Commission's clearing requirements (hereinafter referred to as the

Implementation Schedule). Thus, the Commission's clearing requirement

compliance date for each interest rate swap product covered by this

determination will be the earlier of: (i) The first date that U.S.

markets are open 60 calendar days after any person is first required to

comply with an analogous clearing requirement that has been adopted by

a regulator in a non-U.S. jurisdiction, provided that any such date for

any swap covered by the final rule shall not be earlier than the date

which is 60 calendar days after the Commission's final rule is

published, or (ii) the first date U.S. markets are open two years after

the Commission's final rule is published in the Federal Register. If

the clearing requirement compliance date falls on a Saturday, Sunday,

or U.S. federal public holiday, the compliance date shall be the next

available business day. No compliance date shall be set on a day when

markets are not open in the U.S.

C. Clarifications to the Implementation Schedule

A number of commenters raised questions about details in the

Commission's proposed implementation schedule, as it was described in

the NPRM. The Commission responds below to each of the comments and

provides clarifications to the Implementation Schedule, as appropriate.

i. Comments Received--60-Day Delay

SIFMA AMG suggested that the Commission extend the time period that

will elapse between a non-U.S. jurisdiction adopting a clearing mandate

and the Commission's implementation of a compliance date for swaps

subject to amended regulation 50.4(a). Specifically, SIFMA AMG

recommended that the Commission wait 180 days after an effective date

in a non-U.S. jurisdiction before requiring compliance with this final

rulemaking.

The Commission has considered the timeframe necessary for U.S.

market participants to prepare for, and comply with, a clearing

requirement for the swaps subject to this determination and decided

that 60 calendar days will provide enough time for U.S. market

participants to comply.\173\ As noted above, the Commission does not

expect market participants to need significant, additional time to

prepare for this expansion of the clearing requirement because a number

of market participants clear these products already and/or are familiar

with clearing other interest rate swaps products.\174\

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

\173\ The Commission is clarifying the language in this final

release to specify that the 60-day time period will be measured in

calendar days; however, the Commission's clearing requirement will

begin only on the next available business day. See Projected

Compliance Dates in section IV.E. This change was made in response

to one commenter's request to the Commission to clarify whether the

60-day delay (between the date on which a non-U.S. jurisdiction's

clearing requirement takes effect and the date that compliance will

be required with the Commission's clearing requirement) is measured

in calendar days or business days. See Scotiabank letter.

\174\ See also the discussion in section IV.A.

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

ii. Comments Received--Effective Date is the First Date Upon Which a

Product is Required to be Cleared

Citadel asked the Commission to clarify how the Commission would

establish the ``effective date'' in a non-U.S. jurisdiction, which is

used to determine the CFTC compliance date. Citadel pointed out that

when a non-U.S. jurisdiction's uses of a phased-in compliance schedule

it could create ambiguity if the Commission's rule is not clarified.

The Commission recognizes that the term ``effective date'' can have

a different meaning in different jurisdictions based on local law and

procedure. Therefore, the Commission is clarifying that the CFTC's

clearing requirement will be based on the first date upon which any

person in the non-U.S. jurisdiction is initially subject to a clearing

mandate for new trades, i.e., any front-loading or back-loading

requirements if they take effect earlier would not be relevant for

purposes of the Implementation Schedule.

iii. Comments Received--Two-Year Time Limit

As proposed in the NPRM, Scenario II included a two-year time limit

providing that compliance with the expanded clearing requirement would

be required no later than two years after the final rule is published

in the Federal Register. The Commission received five comment letters

related to Scenario II's two-year time limit and certainty regarding

compliance dates.

MFA commented that, while it preferred Scenario I, Scenario II was

a reasonable option because the Commission included a two-year time

limit. In its comment letter, Citadel recognized the importance of

retaining the two-year time limit and noted that ``it is important to

retain an outer bound

[[Page 71229]]

of two years for when the final Commission rule may become effective in

order to provide certainty to market participants regarding

implementation.'' LCH Group supported Scenario II because ``this

approach provides flexibility and certainty . . . [that] . . . will

foster further international harmonization in the adoption of clearing

requirements.''

SIFMA AMG recommended that the Commission revise its proposed

implementation schedule to remove the ``proviso'' that would cause an

automatic effective date no later than two years after the date that

the final rulemaking is published in the Federal Register. SIFMA AMG

expressed concern based on the idea that ``clearing mandates [are]

being imposed on U.S. market participants in the name of harmonization

when there is ultimately no foreign clearing mandate with which to

harmonize.'' JBA noted that some uncertainty would remain even with a

schedule that implements all clearing requirements no later than two

years after publication, unless non-U.S. regulators align their

regulatory actions with the Commission's implementation schedule.

The Commission observes that since the publication of the NPRM,

significant progress has been made with regard to the status of

clearing requirements in almost all non-U.S. jurisdictions relevant to

this rulemaking. Five of the seven jurisdictions have established

compliance dates for their market participants to begin clearing

pursuant to their analogous clearing mandates. Only Singapore and

Switzerland have not yet finalized their clearing mandates and set

compliance dates.

In order to assure market participants that there will be a date

certain by which they will be required to comply with the clearing

requirement for these swaps, particularly for the SGD-denominated

fixed-to-floating and CHF-denominated fixed-to-floating interest rate

swaps, the Commission has decided to retain the two-year time limit in

the Implementation Schedule. In reaching this conclusion, the

Commission is cognizant of its obligations to provide legal certainty

under applicable statutory procedures. The Commission also recognizes

the importance of providing market participants with certainty about

compliance dates so that they can begin operational planning and

preparation for required clearing of all swaps subject to this final

rulemaking. To the extent that market participants need adequate time

to onboard clients and establish connectivity to eligible DCOs,

retaining the two-year time limit is important.

In finalizing this rulemaking, the Commission seeks to balance

flexibility with certainty in its Implementation Schedule. In the event

that Singapore and Switzerland do not finalize their clearing mandates

and set compliance dates within the two-year time limit, the Commission

and Commission staff would be open to considering options for modifying

the compliance deadline as necessary and appropriate.

D. Scope of Entities Subject to the Implementation Schedule

The Commission received a number of comments that requested an

analysis of the scope of entities subject to the non-U.S.

jurisdiction's clearing requirement and consideration of whether the

entities subject to the CFTC's clearing requirement were ``analogous.''

ASX suggested that the CFTC's assessment of analogous clearing

requirements in non-U.S. jurisdictions should include an analysis of

the classes of counterparties that are subject to such clearing

requirements. Scotiabank asked the Commission to consider the fact that

the Banco de M[eacute]xico's regulations contain an exception from the

clearing mandate for entities with low net derivatives exposure. And

ISDA pointed out that the scope of entities subject to a non-U.S.

clearing mandate may be narrower than the scope of market participants

subject to the Commission's clearing requirement rules under part 50.

By contrast, in its comment letter, Citadel cautioned that if the

Commission were to adopt rules that incorporated the entity scope of

each non-U.S. jurisdiction's clearing mandate, the U.S. framework would

``become a confusing patchwork of foreign regulation, compelling U.S.

market participants to apply different criteria on a currency-by-

currency basis to determine whether (and when) they are in-scope.''

As discussed above, section 2(h)(7) of the CEA sets forth the

participant scope for the clearing requirement: It shall be unlawful

for any person not to clear a swap if that swap is required to be

cleared, except if one of the counterparties to the swap meets certain

conditions enumerated in section 2(h)(7) of the CEA. The Commission has

implemented the statutory exception under section 2(h)(7), along with

other limited exemptions, in subpart C of part 50 of the Commission's

regulations. Based on this statutory and regulatory framework as well

as its consideration of the comments presented, the Commission confirms

that this final rulemaking applies to the same scope of market

participants to which Commission regulation 50.4(a) currently applies.

E. Projected Compliance Dates

The Commission has been monitoring, and will continue to follow

closely, clearing mandate developments in other jurisdictions that

relate to this clearing requirement determination. As discussed above,

the Commission's clearing requirement compliance date is specific to

each product and will be calculated by following the Implementation

Schedule presented herein. With respect to products that do not yet

have a compliance date set for an analogous clearing mandate in a non-

U.S. jurisdiction, the Commission is including the date that is two

years after the date of publication in the Federal Register. If a non-

U.S. jurisdiction modifies any existing initial clearing requirement

compliance date, or adopts a clearing requirement for either the CHF-

denominated fixed-to-floating interest rate swaps or the SGD-

denominated fixed-to-floating interest rate swaps that would require a

CFTC compliance date for a market participant earlier than two years

after the publication date in the Federal Register, then the Commission

staff will publish a press release on the CFTC's Web site setting forth

the Commission's clearing requirement compliance date for the relevant

interest rate swaps in advance of the date upon which compliance will

be required.

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

\175\ Section I.C. contains a more detailed discussion of the

regulatory regimes and compliance dates for mandatory clearing of

these products adopted by non-U.S. regulators.

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

Below is a chart identifying the projected compliance date for each

of the products subject to this determination.

[[Page 71230]]

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

First clearing

requirement

compliance date CFTC clearing

Product in a non-U.S. requirement

jurisdiction compliance date

\175\

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

AUD-denominated Fixed-to- April 4, 2016.... 60 days after

floating interest rate swap. publication of this

final rulemaking in

the Federal

Register.

CAD-denominated Fixed-to- May 9, 2017...... July 10, 2017.

floating interest rate swap.

CHF-denominated Fixed-to- None to date..... No later than 730

floating interest rate swap. days after

publication of this

final rulemaking in

the Federal

Register.

HKD-denominated Fixed-to- July 1, 2017..... August 30, 2017.

floating interest rate swap.

MXN-denominated Fixed-to- April 1, 2016.... 60 days after

floating interest rate swap. publication of this

final rulemaking in

the Federal

Register.

NOK-denominated Fixed-to- February 9, 2017. April 10, 2017.

floating interest rate swap.

PLN-denominated Fixed-to- February 9, 2017. April 10, 2017.

floating interest rate swap.

SEK-denominated Fixed-to- February 9, 2017. April 10, 2017.

floating interest rate swap.

SGD-denominated Fixed-to- None to date..... No later than 730

floating interest rate swap. days after

publication of this

final rulemaking in

the Federal

Register.

AUD-denominated basis swap.... April 4, 2016.... 60 days after

publication of this

final rulemaking in

the Federal

Register.

NOK-denominated FRA........... February 9, 2017. April 10, 2017.

PLN-denominated FRA........... February 9, 2017. April 10, 2017.

SEK-denominated FRA........... February 9, 2017. April 10, 2017.

EUR-denominated OIS (2-3 year June 21, 2016.... 60 days after

term). publication of this

final rulemaking in

the Federal

Register.

GBP-denominated OIS (2-3 year June 21, 2016.... 60 days after

term). publication of this

final rulemaking in

the Federal

Register.

USD-denominated OIS (2-3 year June 21, 2016.... 60 days after

term). publication of this

final rulemaking in

the Federal

Register.

AUD-denominated OIS........... October 3, 2016.. 60 days after

publication of this

final rulemaking in

the Federal

Register.

CAD-denominated OIS........... May 9, 2017...... July 10, 2017.

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

V. Cost Benefit Considerations

A. Statutory and Regulatory Background

Expanded Commission regulation 50.4(a) identifies certain swaps

that would be required to be cleared under section 2(h)(1)(A) of the

CEA in addition to those currently required to be cleared by existing

regulations 50.2 and 50.4(a). This clearing requirement determination

is designed to standardize and reduce counterparty risk associated with

swaps, and in turn, mitigate the potential systemic impact of such

risks and reduce the likelihood for swaps to cause or exacerbate

instability in the financial system. As stated in the NPRM, the

Commission believes this determination is consistent with one of the

fundamental premises of the Dodd-Frank Act and the 2009 commitments

adopted by the G20 nations: The use of central clearing can reduce

systemic risk.

Regulation 39.5 provides an outline for the Commission's review of

swaps for required clearing. Regulation 39.5 allows the Commission to

review swaps submitted by DCOs. Under section 2(h)(2)(D) of the CEA, in

reviewing swaps for a clearing requirement determination, the

Commission must take into account the following factors: (1)

Significant outstanding notional exposures, trading liquidity and

adequate pricing data; (2) the availability of rule framework,

capacity, operational expertise and credit support infrastructure to

clear the contract on terms that are consistent with the material terms

and trading conventions on which the contract is then traded; (3) the

effect on the mitigation of systemic risk; (4) the effect on

competition; and (5) the existence of reasonable legal certainty in the

event of the insolvency of the DCO or one or more of its clearing

members.\176\ Regulation 39.5 also directs DCOs to provide to the

Commission other information, such as product specifications,

participant eligibility standards, pricing sources, risk management

procedures, a description of the manner in which the DCO has provided

notice of the submission to its members and any additional information

requested by the Commission.\177\ This information is designed to

assist the Commission in identifying those swaps that are required to

be cleared.

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

\176\ Section 2(h)(2)(D) of the CEA.

\177\ Commission regulation 39.5(b)(3)(ii).

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

The following discussion is a consideration of the costs and

benefits of the Commission's action in this rulemaking, pursuant to the

regulatory requirements above. The Commission exercises its discretion

under section 2(h)(2)(D) of the CEA to determine whether swaps that are

submitted for a clearing requirement determination are required to be

cleared.

B. Overview of Swap Clearing

i. How Clearing Reduces Risk

When a bilateral swap is cleared, the DCO becomes the counterparty

to each original counterparty to the swap. This arrangement mitigates

counterparty credit risk because the DCO: (1) Monitors and mitigates

the risk of a counterparty default; (2) collects sufficient initial

margin to cover potential future exposures and regularly collects and

pays variation margin to cover current exposures; (3) facilitates

netting within portfolios of swaps and among counterparties; and (4)

holds collateral in a guaranty fund in order to mutualize the remaining

tail risk not covered by initial margin contributions among clearing

members. Central clearing mitigates the interconnectedness among swap

market participants, insofar as, upon acceptance of a swap for

clearing, a DCO becomes the new counterparty to each of the original

counterparties and guarantees performance on the contract. Moreover,

DCOs are independent third parties that are subject to regulatory

oversight--including, among other things, financial resources

requirements and risk management requirements. Accordingly, from the

perspective of market participants, DCOs pose significantly less

counterparty credit risk than their original counterparties.

[[Page 71231]]

DCOs have demonstrated resilience in the face of past market

stress. DCOs remained financially sound and effectively settled

positions in the midst of turbulent financial conditions in 2007-2008

that threatened the financial health and stability of many other types

of entities.

The Commission believes that central clearing through DCOs will

continue to mitigate systemic risk because DCOs have numerous risk

management tools available that are effective in monitoring and

managing counterparty credit risk. These tools include the contractual

right to: (1) Collect initial and variation margin associated with

outstanding swap positions; (2) mark positions to market regularly,

usually multiple times per day, and issue margin calls whenever the

margin in a clearing member's or customer's account has dropped below

predetermined levels set by the DCO; (3) adjust the amount of margin

that is required to be held against swap positions in light of changing

market circumstances, such as increased volatility in the underlying

product; and (4) close out the swap positions of a clearing member or

customer that does not meet margin calls within a specified period of

time.

Moreover, in the event that a clearing member defaults on its

obligations to the DCO, the DCO has numerous remedies available to

manage risk, including transferring the swap positions of the defaulted

member to another clearing member, and covering any losses that may

have accrued with the defaulting member's margin on deposit. In order

to transfer the swap positions of a defaulting member and manage the

risk of those positions, the DCO has the ability to take a number of

steps, including: (1) Hedge the portfolio of positions of the

defaulting member to limit future losses; (2) partition the portfolio

into smaller pieces; and (3) auction off the pieces of the portfolio,

together with their corresponding hedges, to other members of the DCO.

In order to cover the losses associated with such a default, the DCO

would typically draw from: (1) The initial margin posted by the

defaulting member; (2) the guaranty fund contribution of the defaulting

member; (3) the DCO's own capital contribution; (4) the guaranty fund

contributions of non-defaulting members; and (5) an assessment on the

non-defaulting members. These mutualized risk mitigation capabilities

are largely unique to clearinghouses and help to ensure that they

remain solvent and creditworthy swap counterparties even when clearing

members default or there are stressed market circumstances.

ii. The Clearing Requirement and Role of the Commission

With the passage of the Dodd-Frank Act, Congress gave the

Commission the responsibility for determining which swaps would be

required to be cleared pursuant to section 2(h)(1)(A) of the CEA.

Therefore, the costs and benefits associated with a clearing

requirement are attributable to both the CEA, as amended by the Dodd-

Frank Act, and the Commission acting in accordance with the CEA. As a

result, it is difficult to distinguish between the costs associated

with the Dodd-Frank Act itself, and the costs associated with the

Commission exercising the authority granted to it by the Dodd-Frank

Act.

There also is evidence that the interest rate swaps market has been

migrating into clearing for many years in response to market

incentives, in anticipation of the Dodd-Frank Act's clearing

requirement, and as a result of the First Clearing Requirement

Determination. This shift can be seen in the volumes of interest rate

swaps currently being cleared by CME and LCH, the two DCOs that

submitted a significant portion of the information contained in the

NPRM as well as this determination. The open notional value of interest

rate swaps cleared at CME has increased from approximately $2.2

trillion to over $5.5 trillion between June 10, 2013 and September 10,

2013, two implementation dates for the First Clearing Requirement

Determination.\178\ Because the volume of interest rate swaps being

cleared also has increased voluntarily, it is impossible to precisely

determine the extent to which any increased use of clearing would

result from statutory or regulatory requirements, as compared to the

desire of swap market participants to clear swaps for the risk-

mitigating benefits.\179\

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

\178\ See CME Group comment letter of Sept. 16, 2013 in response

the Commission's notice of proposed rulemaking concerning DCOs and

International Standards, 78 FR 50260 (Aug. 16, 2013). The CME Group

comment letter is available on the Commission's Web site at: http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1391.

\179\ It is also possible that some market participants would

respond to the rule's requirement that certain interest rate swaps

be cleared by decreasing their use of such swaps. This possibility

contributes to the uncertainty regarding how the determination will

affect the quantity of swaps that are cleared.

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

For these reasons, the Commission has determined that the costs and

benefits related to the required clearing of the interest rate swaps

subject to this rulemaking are attributable, in part to (1) Congress's

stated goal of reducing systemic risk by, among other things, requiring

clearing of swaps and (2) the Commission's exercise of its discretion

in selecting swaps or classes of swaps to achieve those ends. The

Commission will discuss the costs and benefits of the overall move from

voluntary clearing to required clearing for the swaps subject to this

rulemaking below.

In the NPRM, the Commission requested comment concerning its

assumption that a shift towards clearing may be due to the Dodd-Frank

Act's general clearing requirement or other motivations including

independent business reasons and incentives from other regulators, such

as prudential authorities. While no commenter answered this question

directly, Citadel suggested that a shift towards clearing may be due to

cost savings attributable to clearing swaps at central

counterparties.\180\

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

\180\ According to Citadel's description of academic research,

``the implementation of the Commission's clearing and trading

reforms in the USD interest rate swap market led to a significant

improvement in liquidity and a significant reduction in execution

costs.'' (citations omitted). This comment from Citadel also is

discussed in the Commission's analysis of the fourth factor under

section 2(h)(2)(D) in section II.B.iii.

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

C. Consideration of the Costs and Benefits of the Commission's Action

i. CEA Section 15(a)

Section 15(a) of the CEA requires the Commission to consider the

costs and benefits of its actions before promulgating a regulation

under the CEA or issuing certain orders. Section 15(a) further

specifies that the costs and benefits shall be evaluated in light of

the following five broad areas of market and public concern: (1)

Protection of market participants and the public; (2) efficiency,

competitiveness and financial integrity; (3) price discovery; (4) sound

risk management practices; and (5) other public interest considerations

(collectively referred to herein as the Section 15(a) Factors).

Accordingly, the Commission considers the costs and benefits associated

with the clearing requirement determination in light of the Section

15(a) Factors.

The Commission notes that the consideration of costs and benefits

below is based on the understanding that the markets function

internationally, with many transactions involving U.S. firms taking

place across international boundaries; with some Commission registrants

being organized outside of the United States; with industry members

typically conducting operations both within and outside the United

States; and with industry members commonly following substantially

similar business practices wherever located. Where the

[[Page 71232]]

Commission does not specifically refer to matters of location, the

below discussion of costs and benefits refers to the effects of the

final rules on all activity subject to the amended regulations, whether

by virtue of the activity's physical location in the United States or

by virtue of the activity's connection with or effect on U.S. commerce

under section 2(i) of the CEA.

As stated above, the Commission received 10 comment letters

following publication of the NPRM, seven of which supported the

proposed determination. Some commenters generally addressed the costs

and benefits of the current rule.

In the sections that follow, the Commission considers: (1) The

costs and benefits of required clearing for the swaps subject to this

clearing requirement determination; (2) the alternatives contemplated

by the Commission and their costs and benefits; and (3) the impact of

required clearing for the swaps subject to this final rulemaking and

listed in expanded regulation 50.4(a) in light of the Section 15(a)

Factors.

ii. Costs and Benefits of Required Clearing Under the Final Rule

Market participants may incur certain costs in order to clear the

interest rate swaps included in this adopting release. For example,

market participants that are not already clearing interest rate swaps

either voluntarily or pursuant to the First Clearing Requirement

Determination may incur certain startup and ongoing costs related to

developing technology and infrastructure, updating or creating new

legal agreements, service provider fees, and collateralization of the

cleared positions. The per-entity costs described above are likely to

vary widely depending on the needs of each market participant. Such

costs likely will be lower for the market participants that have

experience clearing the interest rate swaps covered by the First

Clearing Requirement Determination and/or that have been clearing the

interest rate swaps subject to this clearing requirement determination

on a voluntary basis. The opposite likely would be true for market

participants that must begin clearing because of this expanded

determination. Although these market participants may have otherwise

incurred costs associated with margining their uncleared swaps with

bilateral counterparties, as well as incurring other costs associated

with bilateral uncleared swaps, such as startup or ongoing costs

related to developing technology and infrastructure, and updating or

creating new legal agreements related to their uncleared swaps

positions. Moreover, operational costs for these market participants

would increase based on the number of different counterparties with

whom they enter into uncleared swaps. The overall costs of

collateralization are likely to vary depending on whether or not an

entity is subject to the new margin requirements for uncleared

swaps,\181\ whether or not an entity is subject to capital

requirements, and the differential between the cost of capital for the

assets they use as collateral, and the returns realized on those

assets.

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

\181\ The Commission's margin requirements for uncleared swaps

are codified in subpart E of part 23 of the Commission's

regulations. The prudential regulators also established minimum

margin and capital requirements for certain registered SDs, MSPs,

security-based swap dealers, and major security-based swap

participants in November 2015.

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

Market participants that would begin clearing the interest rate

swaps subject to this rulemaking also will obtain the benefits

associated with clearing. These benefits include reduced and

standardized counterparty risk, increased transparency, and easier

access to the swap markets. Together, these benefits will contribute

significantly to the stability and efficiency of the financial system.

However, these benefits are difficult to quantify with any degree of

precision, and market participants already clearing these swaps already

realize the benefits of clearing.

In the NPRM, the Commission requested comment concerning the costs

of clearing, including from both U.S. and non-U.S. swap counterparties

that may be affected by the determination. The Commission also

requested comment as to the benefits that market participants could

realize as a result of the proposed rule. JBA generally commented that

it was opposed to the proposed determination because rising costs

incurred by clearing brokers, due to capital leverage requirements, for

example, have decreased the number of available clearing brokers.\182\

By contrast, as mentioned above, Citadel suggested that the clearing

requirement would create cost savings for market participants because

central clearing, together with execution of swaps on SEFs, has brought

down costs significantly.\183\

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

\182\ See discussion of JBA's comment in section II.A. In its

comment letter, CME Group also generally expressed concern about

participants being able to access cleared markets in light of

capital considerations arising from the calculation of leverage

ratio.

\183\ See discussion of Citadel's comment letter in sections

II.B.iii.d and V.B.

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

a. Technology, Infrastructure, and Legal Costs

Market participants already clearing their swaps may incur costs in

making necessary changes to technology systems to support the clearing

required by the final rule. Market participants that are not currently

clearing swaps may incur costs if they need to implement middleware

technology to connect to FCMs that will clear their transactions.

Similarly, legal costs will vary depending on the extent to which a

market participant is already clearing swaps. The Commission does not

have the information necessary to determine either the costs associated

with entities that need to establish relationships with one or more

FCMs or the costs associated with entities that already have

relationships with one or more FCMs but need to revise their

agreements.\184\ The costs are likely to depend on the specific

business needs of each entity and would therefore vary widely among

market participants. As a general matter, the Commission would expect

that most market participants already will have undertaken the steps

necessary to accommodate the clearing of required swaps based on the

First Clearing Requirement Determination and that the burden associated

with these additional interest rate swaps should be lessened.

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

\184\ The Commission does not have current information regarding

such fees. In the NPRM and in the First Clearing Requirement

Determination (77 FR 74284 at 74324), the Commission noted that it

had been estimated that it would cost smaller financial institutions

between $2,500 and $25,000 to review and negotiate legal agreements

to establish a new business relationship with an FCM (citing comment

letters from Chatham Financial and Webster Bank submitted to the

Commission in 2012 in response to the Commission's request for

comment concerning the cost benefit analysis regarding a potential

clearing exception for certain small financial institutions under

the end-user exception, available at: http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=58077 and http://comments.cftc.gov/PublicComments/ViewComment.aspx?id=58076). The

Commission received no new information from commenters regarding the

costs of establishing a clearing relationship.

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

In the NPRM, the Commission requested comment, including any

quantifiable data and analysis, on the changes that market participants

will have to make to their technological and legal infrastructures in

order to clear the interest rate swaps that would be subject to the

expanded clearing requirement. JBA commented that swap market

participants may incur costs as a result of having to become a clearing

member of a new DCO, or enter into a new client clearing relationship

with a DCO clearing member, if there is only one DCO offering to clear

a particular swap

[[Page 71233]]

subject to the determination, and the swap market participant is not

already a clearing member, or customer of a clearing member, of that

DCO.\185\ As the Commission noted above, in light of the fact that

there are three swaps covered by the determination that are currently

offered for clearing by only one DCO (MXN-denominated fixed-to-floating

interest rate swaps, currently offered for clearing only at CME; and

AUD- and CAD-denominated OIS, currently offered for clearing only at

LCH), and LCH and CME have indicated that they intend to begin offering

to clear each of these swaps, respectively, before the end of 2016, the

Commission believes that JBA's concerns about a swap market participant

having to establish a new clearing arrangement even if the participant

already has a clearing arrangement in place at CME or LCH will be

largely addressed.\186\ Moreover, Citadel commented that swap market

participants generally prefer to clear swaps at one DCO instead of at

multiple DCOs in order to reduce costs by maximizing netting,

compression, and margin offsets.\187\

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

\185\ See also discussion of JBA's comment in the Commission's

analysis of the fourth factor under section 2(h)(2)(D) in section

II.B.iii.

\186\ Id.

\187\ See also discussion of Citadel's comment in the

Commission's analysis of the fourth factor under section 2(h)(2)(D)

in section II.B.iii.

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

b. Ongoing Costs Related to FCMs and Other Service Providers

In addition to costs associated with technological and legal

infrastructures, market participants transacting in swaps subject to

the expanded clearing requirement will face ongoing costs associated

with fees charged by FCMs. DCOs typically charge each FCM an initial

transaction fee for each cleared interest rate swap its customers

enter, as well as an annual maintenance fee for each open position.

CME, LCH, Eurex, and SGX offer a variety of fee schedules for clearing

interest rate swaps. In general, the schedules depend on the length of

a swap's term, the number of swaps cleared per year, and/or a clearing

member's initial margin requirement at the DCO. For example, at LCH and

Eurex, different fee schedules are available depending on whether a

clearing member is clearing for its proprietary account or for a

customer account.\188\ In the case of customer clearing, fees are

generally charged to the clearing member, not the customer.

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

\188\ LCH and Eurex their fees schedules on their Web sites,

available at: http://www.lch.com/asset-classes/otc-interest-rate-derivatives/fees and http://www.eurexclearing.com/clearing-en/markets-services/eurex-otc-clear/about-eurex-otc-clear.

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

The Commission understands that FCMs generally pass onto their

customers the fees that they have been charged by the DCO. In addition,

as noted in the NPRM, the Commission understands that customers that

occasionally transact in swaps are typically required by their FCMs to

pay a monthly or annual fee to each FCM.\189\

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

\189\ The Commission does not have current information regarding

such fees. In the NPRM and in the First Clearing Requirement

Determination (77 FR 74284 at 74325), the Commission noted that

customers that occasionally transact in swaps are typically required

to pay a monthly or annual fee to each FCM that ranges from $75,000

to $125,000 per year (citing comment letters from Chatham Financial

and Webster Bank). The Commission received no new information from

commenters regarding these costs.

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

As discussed above, it is difficult to predict precisely how the

requirement to clear the additional swaps covered by this final

rulemaking will increase the use of swap clearing, as compared to the

use of clearing that would occur in the absence of the requirement. The

Commission expects that the expanded clearing requirement generally

will increase the use of clearing, leading in most cases to an

incremental increase in the clearing fees noted above. However, while

total clearing fees may increase, it may nonetheless be the case that

total costs come down due to offsetting benefits. For instance, market

competition could cause swap prices to decrease, and market

participants may realize benefits due to netting, compression, offsets,

and portfolio margining. The Commission expects that most market

participants already will have undertaken the steps necessary to

accommodate the clearing of required swaps, and that the burden

associated with the additional interest rate swaps should be lessened.

In response to the NPRM, Citadel commented that fees charged by

FCMs, rather than fees charged by DCOs, are the major source of

clearing costs.\190\ Moreover, according to Citadel, the fees charged

by FCMs depend primarily on the portfolio the customer wishes to clear

rather than on the number of DCOs offering to clear a particular swap.

Citadel also commented that the clearing requirement could lead a DCO

or FCM to expand its clearing offerings because of the increased

clearing volumes that may result from the clearing requirement.

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

\190\ FCMs provide their customers with access to DCOs in their

capacity as DCO-clearing members.

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

Finally, CME Group generally expressed concern about market

participants being able to access clearinghouses due to the general

reduction in clearing members' ``appetite to provide clearing services

for smaller firms.'' CME Group referenced an ESMA consultation paper

proposing a postponement of the implementation of its clearing mandate

on such smaller market participants. The Commission is aware that ESMA

released a consultation paper on July 13, 2016, requesting comments on

a proposal to extend the phase-in period for the clearing obligation

for counterparties in a third category under the European Union's

clearing regime.\191\ ESMA acknowledges that the participant scope of

Europe's clearing obligation regulation is different than in most other

jurisdictions because the underlying legislation (EMIR) does not

contain the same types of exemptions from mandatory clearing for

counterparties with limited activity.\192\

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

\191\ See Consultation Paper: On the clearing obligation for

financial counterparties with a limited volume of activity, Jul. 13,

2016, available at: https://www.esma.europa.eu/press-news/consultations/consultation-clearing-obligation-financial-counterparties-limited-volume.

\192\ Id. at 9.

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

The Commission's statutory authority under Dodd-Frank contains

certain enumerated exceptions and exemptions from the clearing

requirement.\193\ In light of the fact that there are counterparties

that qualify for an exception or exemption from the CFTC's clearing

requirement, the Commission does not face the same policy

considerations as its European counterparts with regard to certain

entities under EMIR.\194\ As noted above, in response to CME Group's

comment, the Commission reiterates, that any market participant may

petition for relief under Commission regulation 140.99 if the entity is

unable to find an FCM to clear its swaps or if it needs additional time

to complete requisite documentation.\195\

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

\193\ See Section 2(h)(7) of the CEA and subpart C of part 50 of

the Commission's regulations.

\194\ In particular, ESMA's consultation focuses on financial

counterparties, and certain investment funds that qualify as non-

financial counterparties, that satisfy the threshold level of

derivatives activity (e.g., a gross notional value of EUR 3 billion

for interest rate derivatives contracts) but have an outstanding

gross notional amount of derivatives below EUR 8 billion for a

particular point in time.

\195\ First Clearing Requirement Determination, 77 FR at 74320.

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

c. Costs Related to Collateralization of Cleared Swap Positions

Market participants that enter into the interest rate swaps subject

to the amended rule will be required to post initial margin at a DCO.

The Commission understands that some of the swaps subject to this

rulemaking are currently being cleared on a voluntary

[[Page 71234]]

basis.\196\ In the NPRM, the Commission published the following

estimates.

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

\196\ See Clarus Newsletter by Chris Barnes (June 14, 2016)

available at: https://www.clarusft.com/the-cftcs-new-clearing-mandate-2016/ (discussing the NPRM, its data, and the percentage of

the interest rate swap market already cleared on a voluntary basis).

Table 17--Part 45 Data--Estimated Percentages of the Interest Rate Swap

Market Cleared Voluntarily

[Second Quarter 2015] \197\

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

Percentage of

Product market cleared

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

AUD-denominated fixed-to-floating interest rate swap. 65

CAD-denominated fixed-to-floating interest rate swap. 72

CHF-denominated fixed-to-floating interest rate swap. 83

HKD-denominated fixed-to-floating interest rate swap. 49

MXN-denominated fixed-to-floating interest rate swap. 25

NOK-denominated fixed-to-floating interest rate swap. 40

PLN-denominated fixed-to-floating interest rate swap. 66

SEK-denominated fixed-to-floating interest rate swap. 45

SGD-denominated fixed-to-floating interest rate swap. 24

AUD-denominated basis swap........................... 28

NOK-denominated FRA.................................. 94

PLN-denominated FRA.................................. 32

SEK-denominated FRA.................................. 25

EUR-denominated OIS (2-3 year term).................. 100

GBP-denominated OIS (2-3 year term).................. 100

USD-denominated OIS (2-3 year term).................. 100

AUD-denominated OIS.................................. 18

CAD-denominated OIS.................................. 88

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

With information provided by CME, LCH, and SGX,\198\ the Commission

has estimated the amounts of initial margin currently on deposit at

these three DCOs allocable to the interest rate swaps subject to this

rulemaking. Using this information, the Commission estimated in the

NPRM that this clearing requirement determination would require market

participants to post the following amounts of additional initial margin

with DCOs for each of the interest rate swaps covered by this

determination.\199\ The amounts in Table 18 below do not, however,

account for any additional margin market participants would post to

their bilateral counterparties under the new rules for uncleared swap

margin.

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

\197\ The Commission used part 45 Data to make these estimates

based on swap activity occurring during the second quarter of 2015.

Like the part 43 Data referenced above, part 45 Data includes swaps

entered into by U.S. persons as well as by certain non-U.S. persons.

See Interpretive Guidance and Policy Statement Regarding Compliance

With Certain Swap Regulations, 78 FR 45292, 45368-69 (July 26,

2013). The data set used for Table 17 does not include swaps entered

into by affiliated counterparties. Data from the third and fourth

quarters of 2015 were used to calculate the estimates for EUR-, GBP-

, and USD-denominated OIS with terms of two to three years. Data

from January 2016 was used to calculate the estimates for AUD- and

CAD-denominated OIS.

\198\ The Commission is not including margin data from Eurex for

purposes of this calculation because it does not affect the overall

percentages significantly.

\199\ The Commission made these calculations using the following

formula:

X/Y-X.

X = Current value of margin on deposit at DCOs for an interest

rate swap denominated in a particular currency.

Y = Percentage of the market for that swap that is currently

cleared. This same methodology was used in the First Clearing

Requirement Determination as a rough proxy for estimating the total

costs of required clearing in terms of initial margin. As discussed

above, commission risk surveillance staff has sophisticated tools

for assessing risk-based margin methodologies and coverage levels.

Table 18--Aggregate Initial Margin Due to DCOs Under Clearing

Requirement Determination

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

Amount of margin

Swap USD equivalent

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

AUD-denominated Fixed-to-floating interest rate swap. $1,107,287,108

CAD-denominated Fixed-to-floating interest rate swap. 419,208,078

CHF-denominated Fixed-to-floating interest rate swap. 105,963,972

HKD-denominated Fixed-to-floating interest rate swap. 216,677,823

MXN-denominated Fixed-to-floating interest rate swap. 1,867,370,001

NOK-denominated Fixed-to-floating interest rate swap. 241,288,835

PLN-denominated Fixed-to-floating interest rate swap. 84,789,768

SEK-denominated Fixed-to-floating interest rate swap. 603,185,677

SGD-denominated Fixed-to-floating interest rate swap. 1,113,041,264

AUD-denominated basis swap........................... 612,166,597

NOK-denominated FRA.................................. 10,746,747

PLN-denominated FRA.................................. 186,238,075

SEK-denominated FRA.................................. 942,845,508

EUR-denominated OIS (2-3 year term).................. 0

GBP-denominated OIS (2-3 year term).................. 0

USD-denominated OIS (2-3 year term).................. 0

AUD-denominated OIS.................................. 84,254,007

[[Page 71235]]

 

CAD-denominated OIS.................................. 6,630,342

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

Total............................................ 7,601,693,801

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

As noted in the NPRM, the Commission believes that these estimates

may be higher than the actual amounts of initial margin that would need

to be posted as a result of this determination because these estimates

are based on several assumptions. First, the estimates assume that none

of the swaps that are currently executed on an uncleared basis are

currently collateralized. By contrast, an ISDA survey reported that as

of December 31, 2014, 88.9% of all uncleared fixed income derivative

transactions are subject to a credit support annex.\200\ Moreover,

uncleared swaps between certain SDs, MSPs, and ``financial end-users,''

will be subject to initial and variation margin requirements pursuant

to the Commission's and the prudential regulators' margin regulations

for uncleared swaps, as discussed further below.\201\ Second, the

estimates listed in Table 18 are based on the assumption that none of

the swaps, when entered into on an uncleared basis, are priced to

include implicit contingent liabilities and counterparty risk borne by

the counterparty to the swap. Third, not all swaps having the

additional denominations or maturities adopted herein will necessarily

be eligible for clearing if they are not otherwise covered by the

clearing requirement (i.e., the specifications set forth in revised

regulation 50.4(a)) or if the swaps have terms that prevent them from

being cleared. Finally, certain entities may elect an exception or

exemption from the clearing requirement, which would not require such

an entity to clear the swaps covered by this determination.\202\

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

\200\ See ISDA Margin Survey 2015 at page 12, Table 6, available

at: http://www2.isda.org/functional-areas/research/surveys/margin-surveys/. Although it is unclear exactly how many of the derivatives

covered by this survey are swaps, it is reasonable to assume that a

large part of them are.

\201\ Margin Requirements for Uncleared Swaps for Swap Dealers

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

Capital Requirements for Covered Swap Entities, 80 FR 74840 (Nov.

30, 2015) (together the ``uncleared swap margin regulations'').

\202\ See Subpart C of part 50 (Exceptions and Exemptions to the

Clearing Requirement). There also is a possibility that the

estimates listed in Table 18 are lower than the actual figures

because certain market participants with directional portfolios may

be unable to benefit from margin offsets that could come from

clearing. However, the Commission believes that the estimates listed

in Table 18 are more likely to overstate the required additional

margin amounts than to underestimate them.

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

The amounts of initial margin that the Commission estimates would

be required to be posted due to this rule (listed in Table 18) do not

include the costs that some market participants may incur to obtain

this collateral. Some entities may have to raise funds to acquire

assets that a DCO accepts as initial margin. The greater the funding

cost relative to the rate of return on the asset used as initial

margin, the greater the cost of procuring this asset. Quantifying this

cost with any precision is challenging because different entities may

have different funding costs and may choose assets with different rates

of return. Moreover, funding costs will vary as interest rates and

interest rate spreads vary. One way to estimate the funding cost of

procuring assets to be used as initial margin is to compare the rate of

return, or yield, on an asset that is usually accepted by a DCO for

initial margin with the cost of funding the asset with debt financing.

Based on the Commission's experience and understanding, the Commission

has decided to estimate this cost using an average borrowing cost of

3.35% \203\ and then subtracting the 1.14% return that a 5-year U.S.

Treasury bond yields.\204\ This calculation produces an estimated

funding cost of 2.21%. By multiplying the total estimated initial

margin amount of $7,601,693,801 (Table 18) by 2.21%, the Commission

estimates that the cost of funding the total initial margin that will

be required to be posted due to this rule is approximately

$167,997,433. It also should be noted that some entities, such as

pension funds and asset managers, may use as initial margin assets that

they already own. In these cases, the market participants would not

incur a funding cost in order to post initial margin.

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

\203\ Bank of America Merrill Lynch U.S. Corporate BBB effective

yield for August 8, 2016.

\204\ On August 8, 2016, a 5-year U.S. treasury bond yielded

1.14%.

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

The Commission received no comments in response to its question

about the cost of funding initial margin or funding costs that market

participants may face due to interest rates on bonds issued by a

sovereign nation.

The Commission recognizes further that the new initial margin

amounts that will be required to be posted as a result of this clearing

requirement will, for entities required to post initial margin under

either the clearing requirement or the uncleared swap margin

regulations, replace current bilateral market practice. The new

uncleared swap margin regulations require SDs and MSPs to post and

collect initial and variation margin for uncleared swaps executed with

their counterparties that are other SDs or MSPs or are ``financial end-

users,'' subject to various conditions and limitations.\205\

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

\205\ See Subpart E of part 23 of the Commission's regulations.

Swap clearing requirements under part 50 of the Commission's

regulations apply to a broader scope of market participants than the

Commission's uncleared swap margin rules. For example, under subpart

E of part 23, a financial end-user that does not have ``material

swaps exposure'' (as defined by regulation 23.151) is not required

to post initial margin, but such an entity may be subject to the

swap clearing requirement.

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

The Commission expects that the initial margin that will be

required to be posted for a cleared swap subject to this determination

will typically be less than the initial margin that would be required

to be posted for uncleared swaps pursuant to the uncleared swap margin

regulations. Whereas the initial margin requirement for cleared swaps

must be established according to a margin period of risk of at least

five days,\206\ under the uncleared swap margin regulations, the

minimum initial margin requirement is generally set with a margin

period of risk of 10-days or, under certain circumstances, less or no

initial margin for inter-affiliate transactions.\207\ The uncleared

swap margin regulations are being phased in

[[Page 71236]]

between September 1, 2016 and September 1, 2020.

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

\206\ Commission regulation 39.13(g)(2)(ii)(C).

\207\ Commission regulations 23.154(b)(2)(i) and 23.159. See

also Margin and Capital Requirements for Covered Swap Entities, 80

FR 74840 (Nov. 30, 2015). For an uncleared swap, entered into by an

SD or MSP supervised by a prudential regulator, which would be

subject to the Commission's clearing requirement under part 50 but

is not cleared due to the election of the exemption for a swap

between certain affiliated entities (Commission regulation 50.52),

the margin period of risk is at least five days. For an uncleared

swap, entered into by an SD or MSP supervised by the Commission, no

margin is required if the swap is exempt from the uncleared margin

regulations.

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

With respect to swaps that will be subject to this clearing

requirement determination, but not subject to the uncleared swap margin

regulations, the Commission believes that the new initial margin

amounts that will be posted at the DCO will be a displacement of a cost

that is currently embedded in the prices and fees for transacting the

swaps on an uncleared and perhaps uncollateralized basis rather than a

new cost.\208\ Entering into a swap is costly for any market

participant because of the default risk posed by its counterparty,

whether the counterparty is a DCO, SD, MSP, or other market

participant. When a market participant faces the DCO, the DCO accounts

for that counterparty credit risk by requiring collateral to be posted,

and the cost of capital for the collateral is part of the cost that is

necessary to maintain the swap position. When a market participant

faces an SD or other counterparty in an uncleared swap, however, the

uncleared swap contains an implicit line of credit upon which the

market participant effectively draws when its swap position is out of

the money.

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

\208\ Under part 50 of the Commission's regulations, the

clearing requirement applies to all market participants except for

those subject to an exception or exemption under subpart C of part

50. Under part 23 of the Commission's regulations, the Commission's

uncleared swap margin rules apply only to swaps between Commission-

registered SDs and/or MSPs that do not have a prudential regulator

and to swaps between such an entity and certain ``financial end

users.'' See Commission regulations 23.151 (definition of financial

end users), 23.152 (collection and posting of initial margin), and

23.153 (collection and posting of variation margin). Commission-

registered SDs and MSPs that have a prudential regulator are subject

to uncleared swap margin rules promulgated by those authorities.

Thus, part 50 has a broader scope than part 23. See also note 212.

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

Counterparties charge for this implicit line of credit in the

spread they offer on uncollateralized, uncleared swaps. It has been

argued that the cash flows of an uncollateralized swap (i.e., a swap

with an implicit line of credit) are, over time, substantially

equivalent to the cash flows of a collateralized swap with an explicit

line of credit.\209\ And because the counterparty credit risk created

by the implicit line of credit is the same as the counterparty risk

that would result from an explicit line of credit provided to the same

market participant, to a first order approximation, the charge for each

should be the same as well.\210\ This means that the cost of capital

for additional collateral posted as a consequence of requiring

uncollateralized swaps to be cleared takes a cost that is implicit in

an uncleared, uncollateralized swap and makes it explicit. This

observation applies to capital costs associated with both initial

margin and variation margin.

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

\209\ See Antonio S. Mello and John E. Parsons, ``Margins,

Liquidity, and the Cost of Hedging.'' MIT Center for Energy and

Environmental Policy Research, May 2012, available at: http://dspace.mit.edu/bitstream/handle/1721.1/70896/2012-005.pdf?sequence=1.

\210\ See id., Mello and Parsons state in their paper:

``[h]edging is costly. But the real source of the cost is not the

margin posted, but the underlying credit risk that motivates

counterparties to demand that margin be posted.'' Id. at 12. They go

on to demonstrate that, ``[t]o a first approximation, the cost

charged for the non-margined swap must be equal to the cost of

funding the margin account. This follows from the fact that the non-

margined swap just includes funding of the margin account as an

embedded feature of the package.'' Id. at 15-16.

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

In addition, the rule may result in added operational costs. With

uncleared swaps, counterparties may agree not to collect variation

margin until certain thresholds of exposure are reached, thus reducing

or entirely eliminating the need to exchange variation margin as

exposure changes. DCOs, on the other hand, collect and pay variation

margin on a daily basis and sometimes more frequently. As a

consequence, increased required clearing may increase certain

operational costs associated with exchanging variation margin with the

DCO (although the exchange of variation margin may be expected to

provide the benefit of lowering the build-up of current exposure). On

the other hand, increased clearing also could lead to reduced

operational costs related to valuation disputes about posted

collateral, as parties to cleared swaps agree to post collateral that

is less susceptible to valuation disputes.

The rule also may result in additional costs for clearing members

in the form of guaranty fund contributions. However, it also could

decrease guaranty fund contributions for certain clearing members. Once

the expanded clearing requirement takes effect, market participants

that currently transact swaps bilaterally must either become clearing

members of a DCO or submit such swaps for clearing through an existing

clearing member. A market participant that becomes a direct clearing

member must make a guaranty fund contribution, while a market

participant that clears its swaps through a clearing member may pay

higher fees if the clearing member passes the costs of the guaranty

fund contribution to its customers. While not certain, the possible

addition of new clearing members and/or new customers for existing

clearing members may result in an increase in guaranty fund

requirements. However, it should be noted that if (1) any new clearing

members are not among the two clearing members used to calculate the

guaranty fund and (2) any new customers trading through a clearing

member do not increase the size of uncollateralized risks at either of

the two clearing members used to calculate the guaranty fund, all else

held constant, existing clearing members may experience a decrease in

their guaranty fund requirement.

In the NPRM, the Commission requested comment regarding the total

amount of additional collateral that would be required due to the

proposed clearing requirement. In particular, the Commission sought

quantifiable data and analysis.\211\ No commenter addressed the

quantitative approach laid out by the Commission in the NPRM. Nor did

any commenter provide quantifiable data and analysis to support or

refute such analysis.

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

\211\ 81 FR at 39531.

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

d. Benefits of Clearing

As noted above, the benefits of swap clearing are generally

significant. The Commission believes that while the requirement to

margin uncleared swaps in certain circumstances also will mitigate

counterparty credit risk, such risk is mitigated further for swaps that

are cleared through a central counterparty. Moreover, as discussed

above, the clearing requirement under part 50 of the Commission

regulations applies to a larger set of market participants than the

uncleared swaps margin regulations.\212\ Thus, to the extent that the

clearing requirement for additional interest rate swaps leads to

increased clearing, these benefits are likely to be realized.

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

\212\ Section II.B.iii sets forth the Commission's view that

central clearing offers greater risk mitigation than bilateral

margining for swaps. Included in that section was a summary of

Citadel's comment agreeing with the Commission's view. As noted

above, the clearing requirement applies to a broader scope of market

participants than the Commission's uncleared swap margin rules.

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

As is the case for the costs noted above, it is impossible to

predict the precise extent to which the use of clearing will increase

as a result of the final rule, and therefore the benefits of the final

rule cannot be precisely quantified. However, the Commission believes

that the benefits of increased central clearing resulting from the rule

will be substantial, because the additional swaps required to be

cleared by the rule have significant volumes within the overall

interest rate swap market.

[[Page 71237]]

The rule's requirement that certain swaps be cleared is expected to

increase the use of central clearing, as well as the number of swap

market participants that will benefit from reduced counterparty credit

risk and the other risk mitigating tools offered by central clearing

through DCOs that are subject to CFTC regulation and supervisory

oversight.

As noted above, several commenters praised the Commission's

approach to further harmonizing the Commission's swap clearing

requirement with requirements issued by non-U.S. jurisdictions.\213\

Citadel commented that such harmonization would lead to the benefit of

eliminating regulatory arbitrage. LCH Group stated that such

harmonization would promote certainty for market participants. SIFMA

AMG commented that such harmonization would improve the functioning of

swaps markets and reduce operational complexity. ISDA commented that

harmonization is crucial to effective and efficient implementation of

all of the reforms of the derivatives markets sought by the G20. MFA

commented that the Commission's approach to harmonizing its clearing

requirement with those of other jurisdictions would increase

transparency and market integrity. MFA also suggested that if the

Commission proceeds with the expanded clearing requirement, then other

jurisdictions will follow.

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

\213\ See summary of these comments in section II.B.

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

D. Costs and Benefits of the Commission's Action as Compared to

Alternatives

As noted in the NPRM, this determination is a function of both the

market importance of these products and the fact that they already are

widely cleared. The Commission believes the interest rate swaps subject

to this rulemaking are appropriate to require to be cleared because

they are widely used and already have a blueprint for clearing and risk

management.

Given the implementation of the Commission's First Clearing

Requirement Determination for interest rate swaps, and the widespread

use of central clearing for the additional products included in this

determination, DCOs, FCMs, and market participants already have

experience clearing the types of swaps subject to this rulemaking. The

Commission therefore expects that DCOs and FCMs are prepared to handle

the increases in volumes and outstanding notional amounts in these

swaps that are likely to result from this determination. Because of the

widespread use of these swaps and their importance to the market, and

because these swaps are already successfully being cleared, the

Commission has determined that certain additional interest rate swaps

be subject to the clearing requirement.

The Commission considered two alternative implementation scenarios.

First, the Commission considered a scenario under which the clearing

requirement for all swaps subject to the rulemaking would take effect

at the same time, regardless of whether an analogous clearing

requirement has been promulgated by an authority of a non-U.S.

jurisdiction. The benefits associated with implementing the clearing

requirement for all swaps subject to this rulemaking on a single date

would include giving market participants certainty and making it easier

for industry members to update relevant policies and procedures at one

time.

As a second option, the Commission considered a scenario under

which compliance with the clearing requirement would be required upon

the earlier of (a) the date 60 days after the effective date of an

analogous clearing requirement that has been adopted by a regulator in

a non-U.S. jurisdiction, provided that any such date for any swap

covered by the final rule shall not be earlier than the date which is

60 days after the Commission's final rule is published in the Federal

Register, or (b) the date two years after the Commission's final rule

is published in the Federal Register. As described in the NPRM, the

second scenario allows the Commission to coordinate compliance dates

with the effective dates set by non-U.S. jurisdictions in order to

promote international harmonization of clearing requirements while

maintaining certainty that compliance with the expanded clearing

requirement will be required within a specific time period (i.e., all

products subject to the determination will be subject to a clearing

requirement no later than two years after the final rule is published).

As discussed above, after considering comments on the two proposed

implementation schedules, the Commission has decided to proceed with

the second option, a schedule that is tied to the first date upon which

any person in a non-U.S. jurisdiction is first subject to a clearing

mandate issued by a non-U.S. jurisdiction, not including any front-

loading or back-loading requirements.\214\ Compared to the first option

of requiring implementation of the clearing requirement for all

products on a single date, the second option will delay implementation

of the clearing requirement for certain products, and thus will delay

the realization of the costs and benefits of mandatory clearing for

these products. However, the Commission is adopting the second option

in light of the benefits of international harmonization of clearing

requirements on a jurisdiction-by-jurisdiction basis, including

mitigation of regulatory arbitrage.

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

\214\ See discussion, including summary of comments received, in

section IV.

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

E. Section 15(a) Factors

As noted above, the requirement to clear the fixed-to-floating

interest rate swaps, basis swaps, FRAs, and OIS covered by this

adopting release is expected to result in increased use of central

clearing, although it is not feasible to quantify with certainty the

extent of that increase. Thus, this section discusses the expected

results from an overall increase in the use of swap clearing in terms

of the factors set forth in section 15(a) of the CEA.

i. Protection of Market Participants and the Public

As described above, required clearing of the interest rate swaps

identified in this clearing requirement determination is expected to

most likely reduce counterparty risk for market participants that clear

those swaps because they will face the DCO rather than another market

participant that lacks the full array of risk management tools that the

DCO has at its disposal. This also reduces uncertainty in times of

market stress because market participants facing a DCO are less

concerned with the impact of such stress on the solvency of their

counterparty for cleared trades.

By requiring clearing of certain interest rate swaps, all of which

are already available for clearing, the Commission expects, as it

stated in the NPRM, that this rule will encourage a smooth transition

by creating an opportunity for market participants to work out

challenges related to required clearing of swaps while operating in

familiar terrain. More specifically, the DCOs currently clearing these

interest rate swaps, CME, Eurex, LCH, and SGX, will clear an increased

volume of swaps that they already understand and have experience

managing. Similarly, FCMs likely will realize increased customer and

transaction volume as a result of the requirement, but will not have to

simultaneously learn how to operationalize clearing for the covered

interest rate swaps. The experience of FCMs with these types of

products also is likely to benefit any customers that are new to

clearing, as the FCM guides

[[Page 71238]]

them through initial experiences with cleared swaps.

In addition, uncleared swaps subject to collateral agreements can

be the subject of valuation disputes. These valuation disputes

sometimes require several months or longer to resolve. Potential future

exposures can grow significantly and even beyond the amount of initial

margin posted during that time, leaving one of the two counterparties

exposed to counterparty credit risk. DCOs significantly reduce and

potentially may eliminate valuation disputes for cleared swaps, as well

as the risk that uncollateralized exposure can develop and accumulate

during the time when such a dispute would have otherwise occurred, thus

providing additional protection to market participants that transact in

swaps that are required to be cleared.

As far as costs are concerned, market participants that do not

currently have established clearing relationships with an FCM will have

to set up and maintain such a relationship in order to clear swaps that

are required to be cleared. As discussed above, market participants

that conduct a limited number of swaps per year likely will be required

to pay monthly or annual fees that FCMs charge to maintain both the

relationship and outstanding swap positions belonging to the customer.

In addition, the FCM is likely to pass along fees charged by the DCO

for establishing and maintaining open positions.\215\

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

\215\ See sections II.B.iii. and V.C.ii for a summary of JBA's

comment concerning the potential costs of establishing a new

clearing arrangement at a DCO in response to this rulemaking, and

the Commission's response to that comment.

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

It is expected that most market participants already will have had

experience complying with prior clearing requirements and that the

incremental burdens associated with clearing the additional interest

rate swaps subject to this rulemaking should be minimal, especially

given the similarities that these products have to those already

included within the prior clearing requirement determination and the

fact that they are already widely cleared products.

ii. Efficiency, Competitiveness, and Financial Integrity of Swap

Markets

The Commission continues to expect that swap clearing will reduce

counterparty risk in times of market stress and promote liquidity and

efficiency during those times. Increased liquidity promotes the ability

of market participants to limit losses by exiting positions effectively

and efficiently when necessary in order to manage risk during a time of

market stress.

In addition, to the extent that positions move from facing multiple

counterparties in the bilateral market to being cleared through a

smaller number of clearinghouses, clearing facilitates increased

netting. This reduces the amount of collateral that a party must post

in margin accounts.

As discussed above, in setting forth this new clearing requirement

determination, the Commission took into account a number of specific

factors that relate to the financial integrity of the swap markets.

Specifically, the NPRM and the discussion above include an assessment

of whether CME, Eurex, LCH, and SGX, each of which currently clears

interest rate swaps, have the rule framework, capacity, operational

expertise and resources, and credit support infrastructure to clear

these swaps on terms that are consistent with the material terms and

trading conventions on which the contract is now traded. The Commission

also considered the resources of DCOs to handle additional clearing

during stressed and non-stressed market conditions, as well as the

existence of reasonable legal certainty in the event of a clearing

member or DCO insolvency.\216\

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

\216\ See section II.C.iii.

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

In considering the efficiencies, competitiveness, and financial

integrity of the swap markets associated with this clearing requirement

determination, the Commission observes that the use of bilateral swaps

generates a need for market participants to conduct due diligence on

each potential counterparty due to concerns about counterparty credit

risk. Requiring certain types of swaps to be centrally cleared reduces

the number of separate counterparties for which such due diligence is

necessary, thereby potentially contributing to the overall efficiency

and competitiveness of the swap markets.

In support of this reasoning, Citadel's comments suggest that

extinguishing bilateral counterparty credit exposure and eliminating

complex bilateral trading documentation for swaps subject to a clearing

requirement enables market participants to access a wider range of

execution counterparties and encourages the entry of new liquidity

providers.\217\ As a result, when a clearing requirement is in effect,

price competition tends to increase, execution costs for investors and

customers tend to decrease, and overall market liquidity would

therefore improve for the swaps subject to the clearing requirement.

Citadel also notes that the imposition of a clearing requirement may

create the commercial rationale for another DCO or FCM to launch or

expand its clearing offering given the expected increase in overall

cleared volumes.

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

\217\ Commission regulation 39.12(b)(6) requires a DCO to

establish rules providing that upon acceptance of a swap for

clearing, the original swap is extinguished and replaced by an equal

and opposite swap between the DCO and each clearing member acting as

principal for a house trade or acting as agent for a customer trade.

This process extinguishes counterparty credit risk between the

original executing counterparties.

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

In adopting this clearing requirement for interest rate swaps, the

Commission must consider the effect on competition, including

appropriate fees and charges applied to clearing. As discussed in more

detail in section II.B.iii, there are a number of potential outcomes

that may result from required clearing. Some of these outcomes may

impose costs, such as if a DCO possessed market power and exercised

that power in an anticompetitive manner, and some of the outcomes would

be positive, such as if the clearing requirement facilitated a stronger

entry opportunity for competitors.\218\

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

\218\ See section II.B.iii for full discussion of comments

related to competition issues.

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

iii. Price Discovery

As the Commission noted in the NPRM, central clearing, in general,

encourages better price discovery because it eliminates the importance

of counterparty creditworthiness in pricing swaps cleared through a

given DCO. That is, by making the counterparty creditworthiness of all

swaps of a certain type essentially the same, prices should reflect

factors related to the terms of the swap, rather than the idiosyncratic

risk posed by the entities trading it.

As discussed in section II.C.iii.a above, CME, Eurex, LCH, and SGX

obtain adequate pricing data for the interest rate swaps that they

clear. Each of these DCOs establishes a rule framework for its pricing

methodology and rigorously tests its pricing models to ensure that the

cornerstone of its risk management regime is as sound as possible.

iv. Sound Risk Management Practices

If a firm enters into uncleared and uncollateralized swaps to hedge

certain positions and then the counterparty to those swaps defaults

unexpectedly, the firm could be left with large outstanding exposures.

Even for uncleared swaps that are subject to the new uncleared swap

margin regulations, some counterparty credit risk remains.\219\ As

[[Page 71239]]

explained in the NPRM and as stated above, when a swap is cleared the

DCO becomes the counterparty facing each of the two original

participants in the swap. This standardizes and reduces counterparty

risk for each of the two original participants. To the extent that a

market participant's hedges comprise swaps that are required to be

cleared, the requirement enhances the market participant's risk

management practices by reducing its counterparty risk.

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

\219\ For example, there is a small risk of a sudden price move

so large that a counterparty would be unable to post sufficient

variation margin to cover the loss, which may exceed the amount of

initial margin posted, and could be forced into default.

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

In addition, required clearing reduces the complexity of unwinding

or transferring swap positions from large entities that default.

Procedures for transfer of swap positions and mutualization of losses

among DCO members are already in place, and the Commission anticipates

that they are much more likely to function in a manner that enables

rapid transfer of defaulted positions than legal processes that would

surround the enforcement of bilateral contracts for uncleared

swaps.\220\

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

\220\ As discussed in sections I.E.iii, II.B.iii, and V.B.,

sound risk management practices are critical for all DCOs,

especially those offering clearing for interest rate swaps. In

section II.B.ii, the Commission considered whether each Sec.

39.5(b) submission under review was consistent with the core

principles for DCOs. In particular, the Commission considered the

DCO submissions in light of Core Principle D, which relates to risk

management. See also section II.B.iii for a discussion of the effect

on the mitigation of systemic risk in the interest rate swap market,

as well as the protection of market participants during insolvency

events at either the clearing member or DCO level.

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

Central clearing has evolved since the 2009 G20 Pittsburgh Summit,

when G20 leaders committed to central clearing of all standardized

swaps. The percentage of the swap market that is centrally cleared has

increased significantly, clearinghouses have expanded their offerings,

and the range of banks and other financial institutions that submit

swaps to clearinghouses has broadened. At the same time, the numbers of

swap clearinghouses and swap clearing members has remained highly

concentrated. This has created concerns about a concentration of credit

and liquidity risk at clearinghouses that could have systemic

implications.\221\ However, the Commission believes that DCOs are

capable of risk managing the interest rate swaps subject to this

rulemaking. Moreover, because only a very small percentage of the swap

market will be affected by this clearing requirement determination and

because significant percentages of the swaps covered by this

determination are already cleared voluntarily, this clearing

requirement determination will not significantly increase credit risk

and liquidity risk to DCOs. The Commission requested comment on this

issue and did not receive any comments in response.

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

\221\ See Dietrich Domanski, Leonardo Gambacorta, and Cristina

Picillo, ``Central clearing: Trends and current issues,'' BIS

Quarterly Review (Dec. 2015), available at: http://www.bis.org/publ/qtrpdf/r_qt1512g.pdf. and 2015 Financial Stability Report published

by the Office of Financial Research of the U.S. Department of the

Treasury (Dec. 15, 2015), available at: http://financialresearch.gov/financial-stability-reports/files/OFR_2015-Financial-Stability-Report_12-15-2015.pdf.

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

v. Other Public Interest Considerations

In September 2009, the President and the other leaders of the G20

nations met in Pittsburgh and committed to a program of action that

includes, among other things, central clearing of all standardized

swaps.\222\ The Commission believes that this clearing requirement will

represent another step toward the fulfillment of the G20's commitment.

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

\222\ The G20 Leaders Statement made in Pittsburgh is available

at: http://www.g20.utoronto.ca/2009/2009communique0925.html.

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

VI. Related Matters

A. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) requires agencies to consider

whether the rules they propose will have a significant economic impact

on a substantial number of small entities and, if so, provide a

regulatory flexibility analysis respecting the impact.\223\ As stated

in the NPRM, this clearing requirement determination will not affect

any small entities, as the RFA uses that term.\224\ Pursuant to section

2(e) of the CEA, only eligible contract participants (ECPs) may enter

into swaps, unless the swap is listed on a DCM. The Commission has

previously determined that ECPs are not small entities for purposes of

the RFA.\225\ As stated in the NPRM, the clearing requirement

determination will only affect ECPs because all persons that are not

ECPs are required to execute their swaps on a DCM, and all contracts

executed on a DCM must be cleared by a DCO, as required by statute and

regulation, not by operation of any clearing requirement determination.

The Commission did not receive comments on this conclusion. Therefore,

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

5 U.S.C. 605(b) that this rulemaking will not have a significant

economic impact on a substantial number of small entities.

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

\223\ 5 U.S.C. 601 et seq.

\224\ 81 FR at 39534-39535.

\225\ 66 FR 20740, 20743 (Apr. 25, 2001).

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

B. Paperwork Reduction Act

The Paperwork Reduction Act (PRA) \226\ imposes certain

requirements on federal agencies, including the Commission, in

connection with conducting or sponsoring any collection of information

as defined by the PRA. This rulemaking will not require a new

collection of information from any persons or entities. The Commission

did not receive any comments relating to the PRA in response to the

NPRM.

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

\226\ 44 U.S.C. 3507(d).

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

List of Subjects in 17 CFR Part 50

Business and industry, Clearing, Swaps.

For the reasons set forth in the preamble, the Commodity Futures

Trading Commission amends 17 CFR part 50 as follows:

PART 50--CLEARING REQUIREMENT AND RELATED RULES

0

1. The authority citation for part 50 continues to read as follows:

Authority: 7 U.S.C. 2(h) and 7a-1 as amended by Pub. L. 111-203,

124 Stat. 1376.

0

2. Revise Sec. 50.4(a) to read as follows:

Sec. 50.4 Classes of swaps required to be cleared.

(a) Interest rate swaps. Swaps that have the following

specifications are required to be cleared under section 2(h)(1) of the

Act, and shall be cleared pursuant to the rules of any derivatives

clearing organization eligible to clear such swaps under Sec. 39.5(a)

of this chapter.

[[Page 71240]]

Table 1a

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

 

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

Specification Fixed-to-floating swap class

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

1. Currency..................... Australian Dollar Canadian Dollar Euro (EUR)........ Hong Kong Dollar Mexican Peso (MXN) Norwegian Krone

(AUD). (CAD). (HKD). (NOK).

2. Floating Rate Indexes........ BBSW.............. CDOR.............. EURIBOR........... HIBOR............. TIIE-BANXICO...... NIBOR.

3. Stated Termination Date Range 28 days to 30 28 days to 30 28 days to 50 28 days to 10 28 days to 21 28 days to 10

years. years. years. years. years. years.

4. Optionality.................. No................ No................ No................ No................ No................ No.

5. Dual Currencies.............. No................ No................ No................ No................ No................ No.

6. Conditional Notional Amounts. No................ No................ No................ No................ No................ No.

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

Table 1b

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

 

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

Specification Fixed-to-floating swap class

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

1. Currency.................. Polish Zloty Singapore Dollar Swedish Krona Swiss Franc Sterling (GBP). U.S. Dollar Yen (JPY).

(PLN). (SGD). (SEK). (CHF). (USD).

2. Floating Rate Indexes..... WIBOR........... SOR-VWAP........ STIBOR.......... LIBOR........... LIBOR.......... LIBOR.......... LIBOR.

3. Stated Termination Date 28 days to 10 28 days to 10 28 days to 15 28 days to 30 28 days to 50 28 days to 50 28 days to 30

Range. years. years. years. years. years. years. years.

4. Optionality............... No.............. No.............. No.............. No.............. No............. No............. No.

5. Dual Currencies........... No.............. No.............. No.............. No.............. No............. No............. No.

6. Conditional Notional No.............. No.............. No.............. No.............. No............. No............. No.

Amounts.

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

Table 2

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

 

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

Specification Basis swap class

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

1. Currency........................ Australian Dollar Euro (EUR)............ Sterling (GBP)....... U.S. Dollar (USD).... Yen (JPY).

(AUD).

2. Floating Rate Indexes........... BBSW.................. EURIBOR............... LIBOR................ LIBOR................ LIBOR.

3. Stated Termination Date Range... 28 days to 30 years... 28 days to 50 years... 28 days to 50 years.. 28 days to 50 years.. 28 days to 30 years.

4. Optionality..................... No.................... No.................... No................... No................... No.

5. Dual Currencies................. No.................... No.................... No................... No................... No.

6. Conditional Notional Amounts.... No.................... No.................... No................... No................... No.

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

Table 3

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

 

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

Specification Forward rate agreement class

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

1. Currency.................. Euro (EUR)...... Polish Zloty Norwegian Krone Swedish Krona Sterling (GBP). U.S. Dollar Yen (JPY).

(PLN). (NOK). (SEK). (USD).

2. Floating Rate Indexes..... EURIBOR......... WIBOR........... NIBOR........... STIBOR.......... LIBOR.......... LIBOR.......... LIBOR.

3. Stated Termination Date 3 days to 3 3 days to 2 3 days to 2 3 days to 3 3 days to 3 3 days to 3 3 days to 3

Range. years. years. years. years. years. years. years.

4. Optionality............... No.............. No.............. No.............. No.............. No............. No............. No.

5. Dual Currencies........... No.............. No.............. No.............. No.............. No............. No............. No.

6. Conditional Notional No.............. No.............. No.............. No.............. No............. No............. No.

Amounts.

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

Table 4

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

 

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

Specification Overnight index swap class

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

1. Currency........................ Australian Dollar Canadian Dollar (CAD). Euro (EUR)........... Sterling (GBP)....... U.S. Dollar (USD).

(AUD).

2. Floating Rate Indexes........... AONIA-OIS............. CORRA-OIS............. EONIA................ SONIA................ FedFunds.

3. Stated Termination Date Range... 7 days to 2 years..... 7 days to 2 years..... 7 days to 3 years.... 7 days to 3 years.... 7 days to 3 years.

4. Optionality..................... No.................... No.................... No................... No................... No.

5. Dual Currencies................. No.................... No.................... No................... No................... No.

6. Conditional Notional Amounts.... No.................... No.................... No................... No................... No.

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

[[Page 71241]]

* * * * *

Issued in Washington, DC, on September 28, 2016, by the

Commission.

Christopher J. Kirkpatrick,

Secretary of the Commission.

Note: The following appendices will not appear in the Code of

Federal Regulations.

Appendices to Clearing Requirement Determination Under Section 2(h) of

the Commodity Exchange Act for Interest Rate Swaps--Commission Voting

Summary and Chairman's Statement

Appendix 1--Commission Voting Summary

On this matter, Chairman Massad and Commissioners Bowen and

Giancarlo voted in the affirmative. No Commissioner voted in the

negative.

Appendix 2--Statement of Chairman Timothy G. Massad

Central clearing is one of the great innovations of the

financial system. Indeed, increasing the use of central clearing for

over-the-counter swaps is one of the most important goals of the

2009 G20 Leaders' agreement and the Dodd-Frank Act.

Of course, central clearing does not eliminate the risk of

transactions. But clearinghouses can monitor and mitigate that risk,

which can make our financial system more stable.

In just a few short years, the percentage of over-the-counter

swaps being cleared has increased substantially. And today, I am

very pleased that we are continuing this progress by expanding the

Commission's swap clearing requirement to include interest rate

swaps denominated in nine additional currencies. Our counterparts in

the relevant non-U.S. jurisdictions have mandated, or are expected

soon to mandate, central clearing for these products, and our

requirements will be phased based on when the corresponding clearing

requirements have taken effect in non-U.S. jurisdictions.

The Commission's first clearing requirement, adopted in 2012,

applied to interest rate swaps denominated in four currencies--U.S.

dollar, euro, British sterling, and Japanese yen. Today, we have

expanded the interest rate swap clearing requirement to include

those denominated in the Australian dollar, Canadian dollar, Hong

Kong dollar, Singapore dollar, Mexican peso, Norwegian krone, Polish

zloty, Swedish krona, and Swiss franc.

Requiring clearing for these swaps will further reduce risk

within our financial system. Today's determination also represents

another important step toward cross-border harmonization of swaps

regulations, which is critically important to creating an effective

regulatory framework.

This rule reflects the CFTC's close coordination with our fellow

regulatory authorities from the various jurisdictions with whom we

are seeking to harmonize. We also consulted and coordinated with our

fellow financial regulators here in the United States.

I want to thank the hardworking CFTC staff for their efforts on

this important measure. I'd also like to thank my fellow

Commissioners Bowen and Giancarlo for their support.

[FR Doc. 2016-23983 Filed 10-13-16; 8:45 am]

BILLING CODE 6351-01-P

 

Last Updated: October 14, 2016