2015-05413
Federal Register, Volume 80 Issue 46 (Tuesday, March 10, 2015)
[Federal Register Volume 80, Number 46 (Tuesday, March 10, 2015)]
[Rules and Regulations]
[Pages 12555-12558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2015-05413]
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Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
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Federal Register / Vol. 80, No. 46 / Tuesday, March 10, 2015 / Rules
and Regulations
[[Page 12555]]
COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 1, 3, 23, 37, 43, 45, 46, and 170
RIN 3038-AE27
Initial Response to District Court Remand Order in Securities
Industry and Financial Markets Association, et al. v. United States
Commodity Futures Trading Commission
AGENCY: Commodity Futures Trading Commission.
ACTION: Supplementation of rulemaking preambles and request for
comments.
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SUMMARY: This release is the Commodity Futures Trading Commission's
(``Commission'' or ``CFTC'') initial response to the order of the
United States District Court for the District of Columbia in Securities
Industry and Financial Markets Association, et al. v. United States
Commodity Futures Trading Commission remanding eight swaps-related
rulemakings to the Commission to address what the court held to be
inadequacies in the Commission's consideration of costs and benefits,
or its explanation of its consideration of costs and benefits, in those
rulemakings. In this release, the Commission: supplements the preambles
to the remanded rulemakings by clarifying that the costs and benefits
identified therein applied both to domestic swaps activities and
activities outside the United States that are subject to the
Commission's swaps rules by operation of section 2(i) of the Commodity
Exchange Act (``CEA''); and solicits comments on whether there are
cross-border costs or benefits associated with the remanded rules that
differ from those associated with activities within the United States.
Following its review of the comments, the Commission will publish a
further response to the District Court remand order which would include
any supplementation of or changes to its consideration of the costs and
benefits of the relevant rules as set forth in the rule preambles. The
Commission will also consider whether to amend any of these rules in
light of information developed in this process.
DATES: Comments must be received on or before May 11, 2015.
ADDRESSES: You may submit comments, identified by RIN 3038-AE27, by any
of the following methods:
Agency Web site: http://comments.cftc.gov. Follow the
instructions for submitting comments through the Web site.
Mail: Send to Christopher Kirkpatrick, Secretary of the
Commission, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street NW., Washington, DC 20581.
Hand Delivery/Courier: Same as Mail, above.
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Please submit your comments using only one of these methods.
All comments must be submitted in English, or if not, accompanied
by an English translation. Comments will be posted as received to
www.cftc.gov. You should submit only information that you wish to make
available publicly. If you wish the Commission to consider information
that you believe is exempt from disclosure under the Freedom of
Information Act (``FOIA''), a petition for confidential treatment of
the exempt information may be submitted according to the procedures
established in Sec. 145.9 of the Commission's regulations.\1\
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\1\ 17 CFR 145.9.
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The Commission reserves the right, but shall have no obligation, to
review, pre-screen, filter, redact, refuse or remove any or all of your
submission from www.cftc.gov that it may deem to be inappropriate for
publication, such as obscene language. All submissions that have been
redacted or removed that contain comments on the merits of the
rulemaking will be retained in the public comment file and will be
considered as required under the Administrative Procedure Act and other
applicable laws, and may be accessible under the FOIA.
FOR FURTHER INFORMATION CONTACT: Rob Schwartz, Deputy General Counsel,
(202) 418-5958, [email protected]; Martin White, Assistant General
Counsel, (202) 418-5129, [email protected]; or Kavita Kumar Puri,
Counsel, (202) 418-5291, [email protected], in the Office of the General
Counsel, Commodity Futures Trading Commission, Three Lafayette Centre,
1151 21st Street NW., Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Overview
This release is the Commission's initial response to the order of
the United States District Court for the District of Columbia in
Securities Industry and Financial Markets Association, et al. v. United
States Commodity Futures Trading Commission, No. 13-1916 (PLF) (D.D.C.
September 16, 2014) \2\ (``SIFMA v. CFTC'') remanding eight swaps-
related rulemakings to the Commission to address what the court held to
be inadequacies in the Commission's explanation of its consideration of
costs and benefits in those rulemakings. The eight remanded rulemakings
are:
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\2\ --F. Supp. 3d--, 2014 WL 4629567 (``Op.'').
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Real-Time Public Reporting of Swap Transactions Data \3\ (``Real-
Time Reporting Rule'')
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\3\ 77 FR 1182 (January 9, 2012).
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Swap Data Recordkeeping and Reporting Requirements \4\ (``SDR
Reporting Rule'')
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\4\ 77 FR 2136 (January 13, 2012).
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Registration of Swap Dealers and Major Swap Participants \5\
(``Swap Entity Registration Rule'')
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\5\ 77 FR 2613 (January 19, 2012).
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Swap Dealer and Major Swap Participant Recordkeeping, Reporting,
and Duties Rules; Futures Commission Merchant and Introducing Broker
Conflict of Interest Rules; and Chief Compliance Officer Rules for Swap
Dealers, Major Swap Participants, and Futures Commission Merchants \6\
(``Daily Trading Records,'' ``Risk Management,'' and ``Chief Compliance
Officer'' Rules)
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\6\ 77 FR 20128 (April 3, 2012).
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Further Definition of ``Swap Dealer,'' ``Security-Based Swap
Dealer,'' ``Major Swap Participant,'' ``Major Security-Based Swap
Participant,'' and ``Eligible Contract Participant'' \7\ (``Entity
Definition Rule'')
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\7\ 77 FR 30596 (May 23, 2012).
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[[Page 12556]]
Swap Data Recordkeeping and Reporting Requirements: Pre-Enactment
and Transition Swaps \8\ (``Historical SDR Reporting Rule'')
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\8\ 77 FR 35200 (June 12, 2012).
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Confirmations, Portfolio Reconciliation, Portfolio Compression, and
Swap Trading Relationship Documentation Requirements for Swap Dealers
and Major Swap Participants \9\ (``Portfolio Reconciliation Rule'')
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\9\ 77 FR 55904 (September 11, 2012).
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Core Principles and Other Requirements for Swap Execution
Facilities \10\ (``SEF Registration Rule'')
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\10\ 78 FR 33476 (June 4, 2013).
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The court directed the Commission to address explicitly whether the
costs and benefits the Commission identified in those rulemakings apply
to activities outside the United States, and to address any differences
that may exist. In this release, the Commission takes two actions:
First, the Commission supplements the preambles to the eight
remanded rulemakings by clarifying that, unless otherwise specified,
the costs and benefits identified therein addressed both domestic swaps
activities and overseas swaps activities subject to the Commission's
jurisdiction by operation of CEA section 2(i).\11\ In considering those
costs and benefits, the Commission considered all evidence in the
record, regardless of whether the evidence pertained to activities in
the United States or overseas. The rule preambles, including the
Commission's discussions of costs and benefits, reflect the
Commission's understanding that the swaps market operates across
borders, that some regulated activity would occur overseas, and that
Congress expressly provided that the Commission's swaps regulations
would apply to activities outside the United States to the extent of
CEA section 2(i). As with other variations in the universe of covered
swaps activities, where the record evidence contained no information
indicating a material difference in costs and benefits based on the
geographic locus of swaps activities, the Commission addressed its
consideration of costs and benefits of the rules to all swaps
activities to which the rules apply. In the small number of instances
where commenters raised issues specific to overseas activities or
provided data about those activities, the Commission addressed those
issues and data.\12\ Consistent with this approach, and subject to the
limitations of the information available in the rulemaking records, the
costs and benefits identified in the rule preambles applied to all
covered activity within the Commission's jurisdiction.
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\11\ 7 U.S.C. 2(i).
\12\ See infra n.52.
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Second, the Commission is soliciting comments on whether there are
costs or benefits of the remanded rules as applied to business
activities outside the United States that differ from those of the
rules as applied to activities within the United States. Following its
review of the comments, the Commission will publish a further response
to the District Court remand order which would include any
supplementation of, or changes to, its consideration of the costs and
benefits of the rules as set forth in the rule preambles. The
Commission will also consider proposing changes to the rules based on
information developed in this process and other relevant
considerations.
II. Background
A. The District Court Litigation and Decision
On December 4, 2013, three trade associations sued the Commission
in the United States District Court for the District of Columbia,
challenging, on various grounds, the Commission's Interpretive Guidance
and Policy Statement Regarding Compliance with Certain Swap Regulations
\13\ (``Cross-Border Guidance'') as well as the extraterritorial
application of fourteen of the rules promulgated by the Commission to
implement the provisions of the Dodd-Frank Wall Street Reform and
Consumer Protection Act \14\ regarding swaps.\15\ The fourteen
challenged rules were promulgated by the Commission in twelve
rulemakings.\16\ On September 16, 2014, the court issued a decision,
granting summary judgment to the Commission on most issues.
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\13\ 78 FR 45292 (July 26, 2013).
\14\ Public Law 111-203, 124 Stat. 1376.
\15\ Op. at *1, *5. The plaintiffs were the Securities Industry
and Financial Markets Association, the International Swaps and
Derivatives Association, and the Institute of International Bankers.
Op. at *1.
\16\ See Op. at *5. Three of the fourteen challenged rules,
informally identified by the court as the ``Daily Trading Records,''
``Risk Management,'' and ``Chief Compliance Officer'' Rules, were
promulgated as part of a single rulemaking. Id.
The court summarized the case by observing,
The majority of plaintiffs' claims fail because Congress has
clearly indicated that the swaps provisions within Title VII of the
Dodd-Frank Act--including any rules or regulations prescribed by the
CFTC--apply extraterritorially whenever the jurisdictional nexus in
7 U.S.C. 2(i) is satisfied. In this regard, plaintiffs' challenges
to the extraterritorial application of the Title VII Rules merely
seek to delay the inevitable.\17\
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\17\ Op. at *42.
Major holdings by the court regarding the cross-border application of
the Commission's swaps rules included the following:
1. The Commission's Cross-Border Guidance is not subject to
judicial review because it is in part a non-binding general statement
of policy and in part an interpretive rule, neither of which is subject
to judicial review under the Administrative Procedure Act.\18\
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\18\ Op. at *34.
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2. Section 2(i) of the CEA is a self-effectuating provision that
makes Commission swaps rules apply to business activities outside the
United States to the extent they meet the test set forth in the
statutory language.\19\ No Commission rulemaking is needed to make
swaps rules extend to the geographic reach established by Congress in
this provision.\20\ Thus, the Commission's substantive rules regarding
swaps do not need to specify their international scope since that was
done by statute.\21\
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\19\ Op. at *34. Section 2(i), 7 U.S.C. 2(i), provides that the
provisions of this Act relating to swaps that were enacted by the
Wall Street Transparency and Accountability Act of 2010 (including
any rule prescribed or regulation promulgated under that Act), shall
not apply to activities outside the United States unless those
activities--(1) have a direct and significant connection with
activities in, or effect on, commerce of the United States; or (2)
contravene such rules or regulations as the Commission may prescribe
or promulgate as are necessary or appropriate to prevent the evasion
of any provision of this Act that was enacted by the Wall Street
Transparency and Accountability Act of 2010.
Section 2(i)(2), regarding anti-evasion rules, was not at issue
in the SIFMA v. CFTC litigation.
\20\ Op. at *33 (``As already noted, Section 2(i) provides the
authority--without implementing regulations, see infra Section
III.A--to enforce the Title VII Rules extraterritorially whenever
activities'' meet the test set forth in the statute).
\21\ Op. at *36-*37.
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3. Because Congress determined that the Commission's swaps rules
apply to certain overseas activities and established the test for
determining when the rules would apply to those activities, the
Commission was not tasked with reconsidering the costs and benefits of
those legislative decisions.\22\
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\22\ Op. at *38.
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4. Because section 2(i) establishes the extraterritorial scope of
the Commission's swaps rules, the Commission can enforce those rules
overseas relying on that provision. However, to the extent that it may
be useful to develop a more refined interpretation of how section 2(i)
applies in particular circumstances, the Commission has discretion to
address
[[Page 12557]]
those interpretive issues via either rulemaking or case-by-case
adjudication.\23\ Whichever choice it makes, the Commission is not
required to define the precise scope of section 2(i) each time it
promulgates a substantive swaps rule; it can address issues of the
scope of section 2(i) as they arise.\24\
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\23\ Op. at *35.
\24\ Op. at *36-*37.
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Based on these principles, the court held that the rules challenged
by the plaintiffs apply to swaps activities outside the United States
to the extent specified by section 2(i).\25\ The court also held that,
even though some commenters asked the Commission to address the
geographical scope of the rules, the Commission reasonably determined
not to address issues of geographical scope in these particular
proceedings and to simply rely on the statute (i.e., section 2(i)) to
define the rules' application to activities outside the United
States.\26\
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\25\ Op. at *35.
\26\ Op. at *36.
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On the other hand, the court further held that, in the preambles
for ten of the challenged rules, promulgated as part of eight
rulemakings,\27\ the Commission should have, but did not, state whether
the costs and benefits identified in the rule preambles applied not
only to domestic swaps activities, but also to swaps activities outside
the United States.\28\ The eight remanded rulemakings are listed above.
Specifically, the court held that the Commission should have discussed
whether and to what extent the costs and benefits as to overseas
activity may differ from those related to domestic application of the
rules.\29\ On that basis, the court described the rules as
``inadequately explained.'' \30\ It stated, however, that it was
``willing to assume for now'' that the issue was ``one of form and not
of substance.'' \31\ It also held that this perceived shortcoming was
``not so serious as to favor vacatur'' of the rules.\32\ The court
further reasoned that vacatur of these rules would ``produce a bevy of
disruptive consequences,'' in part because ``after vacatur, U.S.-based
swap dealers would be able to avoid Title VII regulations by engaging
in transactions through their foreign subsidiaries and affiliates, even
if the transactions' risk remained with the U.S.-based corporation.''
\33\ Based on its analysis of the statute and rules, the court
determined that there ``exists at least a serious possibility'' that
the affected rules would remain unchanged as a result of proceedings on
remand to elaborate on the geographic element of the identified costs
and benefits.\34\ The court therefore remanded without vacatur the
eight rulemakings encompassing the rules in question for the Commission
to better explain its position on whether the costs and benefits
identified in the rule preambles applied to overseas activities, and to
explain any relevant differences.\35\
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\27\ As noted above, three of the rules at issue were
promulgated as part of a single rulemaking.
\28\ Although the Commission believes that it was sufficiently
clear that the discussion of costs and benefits in the rule
preambles applied to all swaps activity within the Commission's
jurisdiction unless otherwise specified, the Commission has declined
to appeal the district court's ruling. Thus, the court's remand
order is final and binding on the Commission.
\29\ Op. at *39-*40.
\30\ Op. at *40, *42.
\31\ Op. at *41 (internal quotation and citation omitted).
\32\ Id.
\33\ Id.
\34\ Id.
\35\ Op. at *41, *42-43. The plaintiffs' challenge to the
``Trade Execution Rule,'' Process for a Designated Contract Market
or Swap Execution Facility to Make a Swap Available to Trade, Swap
Transaction Compliance and Implementation Schedule, and Trade
Execution Requirement Under the Commodity Exchange Act, 78 FR 33606
(June 4, 2013), was dismissed for lack of standing. Op. at *23. For
three other rules--the ``Large Trader Reporting Rule,'' Large Trader
Reporting for Physical Commodity Swaps, 76 FR 43851 (July 22, 2011);
the ``Straight-Through Processing Rule,'' Customer Clearing
Documentation, Timing of Acceptance for Clearing, and Clearing
Member Risk Management, 77 FR 21278 (April 9, 2012); and the
``Clearing Determination Rule,'' Clearing Requirement Determination
Under Section 2(h) of the CEA, 77 FR 74284 (December 13, 2012)--the
court granted summary judgment to the Commission without reaching
the merits because the plaintiffs did not identify comments
submitted to the Commission during the rulemaking proceedings that
raised issues regarding the extraterritorial applications of these
rules or the associated costs and benefits. Op. at *36 n.30.
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B. The District Court's Rulings on Consideration of Costs and Benefits
The district court remanded the eight rulemakings ``for further
proceedings consistent with the Opinion issued this same day.'' \36\
The court's opinion included a number of holdings and observations that
provide guidance as to the actions the Commission must take on remand
with respect to the consideration of the costs and benefits of the
extraterritorial application of the rules in question.
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\36\ Op. at *43.
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1. The court held that, because Congress made the determination
that the swaps rules apply overseas to the extent specified in section
2(i), CEA section 15(a) does not require the Commission to consider
whether it is necessary or desirable for particular rules to apply to
overseas activities as specified in section 2(i).\37\ Indeed, the court
explained, the Commission cannot, based on a consideration of costs and
benefits, second-guess Congress's decision that swaps rules apply to
certain overseas activities.\38\ As a result, the court stated that
``the only issues necessarily before the CFTC on remand would be the
substance of the Title VII rules, not the scope of those Rules'
extraterritorial applications under 7 U.S.C. 2(i).'' \39\
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\37\ Op. at *38.
\38\ Op. at *39; see also id. at *41 n.35.
\39\ Op. at *41.
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2. At the same time, the court held that, in considering costs and
benefits of the substantive regulatory choices it makes when
promulgating a swaps rule, the Commission is required to take into
consideration the fact that the rule, by statute, will apply to certain
overseas activity.\40\ Thus, the Commission's consideration of costs
and benefits of the application of the rule must encompass both foreign
and domestic business activities.\41\ The court held that the
Commission failed to meet this requirement because, the court stated,
in the cost-benefit discussions for the rules at issue the Commission
did not give explicit consideration to costs and benefits specific to
overseas activities.\42\
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\40\ Op. at *39.
\41\ Id.
\42\ Id.
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3. The court held that the Commission has discretion either to
consider costs and benefits of the international application of swaps
rules separately from domestic application or to evaluate them
together, ``so long as the cost-benefit analysis makes clear that the
CFTC reasonably considered both.'' \43\ The district court found that,
at the time the rules at issue in the litigation were promulgated,
foreign swaps regulations were still under development so that costs of
possible duplicative regulation were hypothetical and did not have to
be considered.\44\ The court noted that this fact raised the
possibility that the costs and benefits of the rules' extraterritorial
application ``were essentially identical to those of the Rules'
domestic applications'' so that the Commission ``functionally
considered the extraterritorial costs and benefits'' of the rules ``by
considering the Rules' domestic costs and benefits.'' \45\ However, the
court concluded that it did not need to address that possibility
because the cost-benefit discussions in the rule preambles gave ``no
indication'' that this
[[Page 12558]]
was so.\46\ The court further noted that foreign swaps regulations
passed since the promulgation of the rules at issue in the litigation
``may now raise issues of duplicative regulatory burdens'' but that
``the CFTC may well conclude that its policy of substituted compliance
largely negates these costs.'' \47\
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\43\ Op. at *40.
\44\ Op. at *39.
\45\ Op. at *40.
\46\ Id.
\47\ Op. at *41.
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4. Finally, the court noted that ``[p]laintiffs raise no complaints
regarding the CFTC's evaluation of the general, often unquantifiable,
benefits and costs of the domestic application of the Title VII
Rules.'' \48\ As a result, the court held, ``[o]n remand, the CFTC
would only need to make explicit which of those benefits and costs
similarly apply to the Rules' extraterritorial applications.'' \49\
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\48\ Op. at *41.
\49\ Id.
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III. Supplement to Preambles of Remanded Rulemakings Regarding the
Scope of the Commission's Consideration of Costs and Benefits
The Commission hereby clarifies that it considered costs and
benefits based on the understanding that the swaps market functions
internationally, with many transactions involving U.S. firms taking
place across international boundaries; with leading industry members
typically conducting operations both within and outside the United
States; and with industry members commonly following substantially
similar business practices wherever located. The Commission considered
all evidence in the record, and in the absence of evidence indicating
differences in costs and benefits between foreign and domestic swaps
activities, the Commission did not find occasion to characterize
explicitly the identified costs and benefits as foreign or domestic.
Thus, where the Commission did not specifically refer to matters of
location, its discussion of costs and benefits referred to the effects
of its rules on all business activity subject to its 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).\50\ In the language of the district court,
the Commission ``functionally considered the extraterritorial costs and
benefits,'' \51\ and this was because the evidence in the record did
not suggest that differences existed, with certain limited exceptions
that the Commission addressed.\52\ For example, as the district court
found, at the time of the promulgation of the rules at issue, foreign
swaps regulations generally were still being developed so any costs
associated with potentially duplicative or inconsistent regulations
remained hypothetical.\53\ Thus, as the court noted, the plaintiffs in
SIFMA v. CFTC did not ``identify any specific data that the CFTC failed
to take into account.'' \54\
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\50\ The statement in the text reflects the Commission's
approach in its consideration of costs and benefits for all of its
Dodd-Frank rules, unless otherwise specified for a particular issue
or issues in a particular rulemaking.
\51\ Op. at *40.
\52\ See, e.g., Portfolio Reconciliation Rule, 77 FR at 55945-
46, 55948-49 & nn.79, 84, 98, 108 (considering ISDA data regarding
U.S. and foreign firms, and factoring in European proposals); Risk
Management Rule, 77 FR at 20177 n.104 (relying on UK FSA study);
Swaps Entity Registration Rule, 77 FR at 2624-25 (stating in
response to comments that Commission ``does not believe that
foreign-based Swaps Entities will bear higher costs associated with
the registration process'' and giving explanation); SDR Reporting
Rule, 77 FR at 2192 (considering costs and benefits of swap
identifiers, including in cross-border activities).
\53\ Op. at *39.
\54\ Op. at *39.
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IV. Request for Comments
As noted above, the district court stated that, on remand, the
Commission ``would only need to make explicit'' which of the costs and
benefits identified in the rule preambles ``similarly apply to the
Rules' extraterritorial applications.'' \55\ In order to assist the
Commission in determining whether any further consideration or
explanation--beyond that contained in the original rule preambles and
this release--is needed to respond to this mandate, the Commission
requests comments on the following questions:
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\55\ Op. at *41.
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1. Are there any benefits or costs that the Commission identified
in any of the rule preambles that do not apply, or apply to a different
extent, to the relevant rule's extraterritorial applications?
2. Are there any costs or benefits that are unique to one or more
of the rules' extraterritorial applications? If so, please specify how.
3. Put another way, are the types of costs and benefits that arise
from the extraterritorial application of any of the rules different
from those that arise from the domestic application? If so, how and to
what extent?
4. If significant differences exist in the costs and benefits of
the extraterritorial and domestic application of one or more of the
rules, what are the implications of those differences for the
substantive requirements of the rule or rules?
Comments should specify, in the header of the comment, the
particular rule or rules that they address. The Commission requests
that comments focus on information and analysis specifically relevant
to the inquiry specified by the district court's remand order.
Consistent with the district court's holding that the Commission is not
required to address the issue of what the geographical scope of its
rules should be in the challenged rulemakings,\56\ the purpose of this
request for comments is to further consider the cross-border costs and
benefits of the substance of the rules, not to initiate a process to
address the rules' cross-border scope, which, as the district court
held, is prescribed by section 2(i).\57\ The Commission further
requests that commenters supply the Commission with relevant data to
support their comments.
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\56\ Op. at *36-*37.
\57\ However, as it has done in the past, the Commission will
continue to consider the proper interpretation and application of
section 2(i) in particular circumstances.
Issued in Washington, DC, on March 4, 2015, by the Commission.
Christopher J. Kirkpatrick,
Secretary of the Commission.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to Initial Response to District Court Remand Order in
Securities Industry and Financial Markets Association, et al. v. United
States Commodity Futures Trading Commission--Commission Voting Summary
On this matter, Chairman Massad and Commissioners Wetjen, Bowen,
and Giancarlo voted in the affirmative. No Commissioner voted in the
negative.
[FR Doc. 2015-05413 Filed 3-9-15; 8:45 am]
BILLING CODE 6351-01-P