2015-32143
[Federal Register Volume 80, Number 246 (Wednesday, December 23, 2015)]
[Proposed Rules]
[Pages 80139-80191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32143]
[[Page 80139]]
Vol. 80
Wednesday,
No. 246
December 23, 2015
Part V
Commodity Futures Trading Commission
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17 CFR Part 37, 38 and 49
System Safeguards Testing Requirements; Proposed Rules
Federal Register / Vol. 80, No. 246 / Wednesday, December 23, 2015 /
Proposed Rules
[[Page 80140]]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 37, 38, and 49
RIN 3038-AE30
System Safeguards Testing Requirements
AGENCY: Commodity Futures Trading Commission.
ACTION: Proposed rulemaking; advanced notice of proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission (``Commission'' or
``CFTC'') is amending its system safeguards rules for designated
contract markets, swap execution facilities, and swap data
repositories, by enhancing and clarifying existing provisions relating
to system safeguards risk analysis and oversight and cybersecurity
testing, and adding new provisions concerning certain aspects of
cybersecurity testing. The Commission is clarifying the existing system
safeguards rules for all designated contract markets, swap execution
facilities, and swap data repositories by specifying and defining the
types of cybersecurity testing essential to fulfilling system
safeguards testing obligations, including vulnerability testing,
penetration testing, controls testing, security incident response plan
testing, and enterprise technology risk assessment. The Commission is
also clarifying rule provisions respecting the categories of risk
analysis and oversight that statutorily-required programs of system
safeguards-related risk analysis and oversight must address; system
safeguards-related books and records obligations; the scope of system
safeguards testing; internal reporting and review of testing results;
and remediation of vulnerabilities and deficiencies. The new provisions
concerning certain aspects of cybersecurity testing, applicable to
covered designated markets (as defined) and all swap data repositories,
include minimum frequency requirements for conducting the essential
types of cybersecurity testing, and requirements for performance of
certain tests by independent contractors. In this release, the
Commission is also issuing an Advance Notice of Proposed Rulemaking
requesting public comment concerning whether the minimum testing
frequency and independent contractor testing requirements should be
applied, via a future Notice of Proposed Rulemaking, to covered swap
execution facilities (to be defined).
DATES: Comments must be received on or before February 22, 2016.
ADDRESSES: You may submit comments, identified by RIN number 3038-AE30,
by any of the following methods:
CFTC Web site: http://comments.cftc.gov. Follow the
instructions for submitting comments through the Comments Online
process on 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 method. All comments
must be submitted in English, or must be accompanied by an English
translation. Contents will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make
available publicly. If you wish the Commission to consider information
that may be exempt from disclosure under the Freedom of Information
Act, a petition for confidential treatment of the exempt information
may be submitted according to the established procedures in CFTC
Regulation 145.9.
FOR FURTHER INFORMATION CONTACT: Rachel Berdansky, Deputy Director,
Division of Market Oversight, 202-418-5429, [email protected]; David
Taylor, Associate Director, Division of Market Oversight, 202-418-5488,
[email protected], or David Steinberg, Associate Director, Division of
Market Oversight, 202-418-5102, [email protected]; Commodity Futures
Trading Commission, Three Lafayette Centre, 1155 21st Street NW.,
Washington, DC 20851.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Preamble
A. Background: The Current Cybersecurity Threat Environment and
the Need for Cybersecurity Testing
B. Categories of Risk Analysis and Oversight Applicable to All
DCMs, SEFs, and SDRs
C. Requirements To Follow Best Practices, Ensure Testing
Independence, and Coordinate BC-DR Plans
D. Updating of Business Continuity-Disaster Recovery Plans and
Emergency Procedures
E. System Safeguards-Related Books and Records Obligations
F. Cybersecurity Testing Requirements for DCMs, SEFs, and SDRs
G. Additional Testing-Related Risk Analysis and Oversight
Program Requirements Applicable to All DCMs, SEFs, and SDRs
H. Required Production of Annual Total Trading Volume
I. Advance Notice of Proposed Rulemaking Regarding Minimum
Testing Frequency and Independent Contractor Testing Requirements
for Covered SEFs
II. Related Matters
A. Regulatory Flexibility Act
B. Paperwork Reduction Act
C. Consideration of Costs and Benefits
III. Requests for Comment
A. Comments Regarding Notice of Proposed Rulemaking
B. Comments Regarding Advance Notice of Proposed Rulemaking
Concerning Covered SEFs
I. Preamble
A. Background: The Current Cybersecurity Threat Environment and the
Need for Cybersecurity Testing
1. Current Cybersecurity Landscape
Cyber threats to the financial sector continue to expand. As the
Commission was informed by cybersecurity experts participating in its
2015 Staff Roundtable on Cybersecurity and System Safeguards Testing,
these threats have a number of noteworthy aspects.\1\
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\1\ See generally CFTC Staff Roundtable on Cybersecurity and
System Safeguards Testing (March 18, 2015) (``CFTC Roundtable''), at
11-91, transcript available at http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/transcript031815.pdf. The Commission
held the CFTC Roundtable due to its concern about the growing
cybersecurity threat discussed in the following paragraphs, and in
order to, among other things, discuss the issue and identify
critical areas of concern. Similarly, a June 2015 Market Risk
Advisory Committee (``MRAC'') meeting focused on cybersecurity. See
generally MRAC Meeting (June 2, 2015), at 6, transcript available at
http://www.cftc.gov/ucm/groups/public/@aboutcftc/documents/file/mrac_060215_transcript.pdf.
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First, the financial sector faces an escalating volume of cyber
attacks. According to the Committee on Payments and Market
Infrastructures (``CPMI'') of the Bank for International Settlements
(``BIS''), ``Cyber attacks against the financial system are becoming
more frequent, more sophisticated and more widespread.'' \2\ A survey
of 46 global securities exchanges conducted by the International
Organization of Securities Commissions (``IOSCO'') and the World
Federation of Exchanges (``WFE'') found that as of July 2013, over half
of exchanges world-wide had experienced a cyber attack during the
previous year.\3\ Cybersecurity now ranks as the number
[[Page 80141]]
one concern for nearly half of financial institutions in the U.S.
according to a 2015 study by the Depository Trust & Clearing
Corporation (``DTCC'').\4\ The annual Price Waterhouse Coopers Global
State of Information Security Survey for 2015, which included 9,700
participants, found that the total number of security incidents
detected in 2014 increased by 48 percent over 2013, for a total of 42.8
million incoming attacks, the equivalent of more than 117,000 attacks
per day, every day.\5\ As the PWC Survey pointed out, these numbers do
not include undetected attacks. Verizon's 2015 Data Breach
Investigations Report noted that during 2014 the financial services
sector experienced an average of 350 malware attacks per week.\6\
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\2\ Committee on Payments and Market Infrastructures of the Bank
for International Settlements, Cyber resilience in financial market
infrastructures (November 2014), at 1, available at http://www.bis.org/cpmi/publ/d122.pdf.
\3\ IOSCO and WFE, Cyber-crime, securities markets and systemic
risk, Staff Working Paper (SWP2/2013) (July 16, 2013) (``IOSCO-WFE
Staff Report''), at 3, available at http://www.iosco.org/research/pdf/swp/Cyber-Crime-Securities-Markets-and-Systemic-Risk.pdf.
\4\ DTCC, Systemic Risk Barometer Study (Q1 2015), at 1,
available at http://dtcc.com/~/media/Files/pdfs/Systemic-Risk-
Report-2015-Q1.pdf.
\5\ PricewaterhouseCoopers, Managing Cyber Risks in an
Interconnected World: Key Findings from the Global State of
Information Security Survey 2015 (September 30, 2014), at 7,
available at www.pwc.com/gsiss2015 (``PWC Survey'').
\6\ Id.
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Second, financial sector entities also face increasing numbers of
more dangerous cyber adversaries with expanding and worsening
motivations and goals. Until recently, most cyber attacks on financial
sector institutions were conducted by criminals whose aim was monetary
theft or fraud.\7\ As noted at the CFTC Roundtable, while such attacks
continue, there has also been a rise in attacks by politically
motivated hacktivists or terrorists, and by nation state actors, aimed
at disruption of their targets' operations, at theft of data or
intellectual property, at extortion, at cyber espionage, at corruption
or destruction of data, or at degradation or destruction of automated
systems.\8\ IOSCO and the WFE note that attacks on securities exchanges
now tend to be disruptive in nature, and note that ``[t]his suggests a
shift in motive for cyber-crime in securities markets, away from
financial gain and towards more destabilizing aims.'' \9\
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\7\ CFTC Roundtable, at 41-42.
\8\ See CFTC Roundtable, at 12, 14-15, 17-24, 42-44, 47.
\9\ IOSCO-WFE Staff Report, at 3-4, available at http://www.iosco.org/research/pdf/swp/Cyber-Crime-Securities-Markets-and-Systemic-Risk.pdf.
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Third, financial institutions may now encounter increasing cyber
threat capabilities. According to a CFTC Roundtable participant, one
current trend heightening cyber risk for the financial sector is the
emergence of cyber intrusion capability--typically highest when
supported by nation state resources--as a key tool of statecraft for
most states.\10\ Another trend noted by Roundtable participants is an
increase in sophistication on the part of most actors in the cyber
arena, both in terms of technical capability and of capacity to
organize and carry out attacks.\11\
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\10\ CFTC Roundtable, at 20-21.
\11\ Id. at 21-22.
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Fourth, the cyber threat environment includes an increase in cyber
attack duration.\12\ While attacks aimed at monetary theft or fraud
tend to manifest themselves quickly, more sophisticated attacks may
involve cyber adversaries having a cyber presence inside a target's
automated systems for an extended period of time, and avoiding
detection.\13\ IOSCO and the WFE noted in 2013 that:
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\12\ Id. at 74-76, 81-82.
\13\ Id.
The rise of a relatively new class of cyber-attack is especially
troubling. This new class is referred to as an `Advanced Persistent
Threat.' Advanced Persistent Threats (APTs) are usually directed at
business and political targets for political ends. APTs involve
stealth to persistently infiltrate a system over a long period of
time, without the system displaying any unusual symptoms.\14\
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\14\ IOSCO-WFE Staff Report, at 3, available at http://www.iosco.org/research/pdf/swp/Cyber-Crime-Securities-Markets-and-Systemic-Risk.pdf.
Fifth, there is now a broadening cyber threat field. Financial
institutions should consider cyber vulnerabilities not only with
respect to their desktop computers, but also with respect to mobile
devices used by their employees.\15\ In some cases, their risk analysis
should address not only protecting the integrity of data in their own
automated systems, but also protecting data in the cloud.\16\ Adequate
risk analysis should also address both the vulnerabilities of the
entity's automated systems and human vulnerabilities such as those
posed by social engineering or by disgruntled or coerced employees.\17\
The cyber threat field includes automated systems that are not directly
internet-facing, which can be vulnerable to cyber attacks despite their
isolation behind firewalls.\18\ In practice, there is interconnectivity
between internet-facing and corporate information technology (``IT'')
and operations technology, since the two can be and often are connected
for maintenance purposes or in error.\19\ Non-internet-facing systems
are also vulnerable to insertion of malware-infected removable media,
phishing attacks, and other social engineering techniques, and to
supply-chain risk involving both hardware and software.\20\
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\15\ CFTC Roundtable, at 22-23.
\16\ Id.
\17\ Id. at 14, 79-80.
\18\ Id. at 60-69.
\19\ Id. at 72-74. As Roundtable panelists also noted,
experienced penetration testers are finding that when they are able
to penetrate a financial institution, they often are able to move
between internet-facing and non-internet-facing systems by
harvesting passwords and credentials and exploiting access
privileges associated with them. Id.
\20\ Id. at 62-64, 77-79.
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Finally, financial institutions cannot achieve cyber resilience by
addressing threats to themselves alone: They also face threats relating
to the increasing interconnectedness of financial services firms.\21\
In today's environment, a financial entity's risk assessments should
consider cybersecurity across the financial sector, from exchanges and
clearinghouses to counterparties and customers, technology providers,
other third party service providers, and the businesses and products in
the entity's supply chain.\22\
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\21\ Id. at 24-25.
\22\ Id. at 47-55.
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2. Need for Cybersecurity Testing
Cybersecurity testing by designated contract markets (``DCMs''),
swap execution facilities (``SEFs''), derivatives clearing
organizations (``DCOs''), swap data repositories (``SDRs''), and other
entities in the financial sector can harden cyber defenses, mitigate
operations, reputation, and financial risk, and maintain cyber
resilience and ability to recover from cyber attack.\23\ To ensure the
effectiveness of cybersecurity controls, a financial sector entity must
test in order to find and fix its vulnerabilities before an attacker
exploits them. A financial sector entity's testing should assess, on
the basis of information with respect to current threats, how the
entity's controls and countermeasures stack up against the techniques,
tactics, and procedures used by its potential adversaries.\24\ Testing
should include periodic risk assessments made in light of changing
business conditions, the changing threat landscape, and changes to
automated systems. It should also include recurring tests of controls
and automated system components to verify their effectiveness and
operability, as well as continuous monitoring and scanning of system
operation and vulnerabilities.\25\ Testing should focus on the entity's
ability to detect, contain, respond to, and recover from cyber attacks,
not just on its perimeter defenses designed to prevent
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intrusions.\26\ It should address detection, containment, and recovery
from compromise of data integrity--perhaps the greatest threat with
respect to financial sector data--in addition to compromise of data
availability or confidentiality, which tend to be the main focus of
many best practices.\27\ Both internal testing by the entity itself and
independent testing by third party service providers are essential
components of an adequate testing regime.\28\
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\23\ Id. at 24.
\24\ Id. at 44.
\25\ Id. at 46.
\26\ Id. at 80-84. As one cybersecurity expert has remarked,
``Organizations are too focused on firewalls, spam filters, and
other Maginot Line-type defenses that have lost their effectiveness.
That's a misguided philosophy. There's no such thing as a perimeter
anymore.'' Associated Press, Cyber theft of personnel info rips hole
in espionage defenses (June 15, 2015), available at http://bigstory.ap.org/article/93077d547f074bed8ce9eb292a3bbd47/cybertheft-personnel-info-rips-hole-espionage-defenses.
\27\ CFTC Roundtable, at 15-16, 65, 71-73, 80-83.
\28\ Id. at 87-88.
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Cybersecurity testing is a well-established best practice generally
and for financial sector entities. The Federal Information Security
Management Act (``FISMA''), which is a source of cybersecurity best
practices and also establishes legal requirements for federal
government agencies, calls for ``periodic testing and evaluation of the
effectiveness of information security policies, procedures, and
practices, to be performed with a frequency depending on risk, but no
less than annually.'' \29\ The National Institute of Standards and
Technology (``NIST'') Framework for Improving Critical Infrastructure
Cybersecurity (``NIST Framework'') calls for testing of cybersecurity
response and recovery plans and cybersecurity detection processes and
procedures.\30\ The Financial Industry Regulatory Authority (``FINRA'')
2015 Report on Cybersecurity Practices notes that ``Risk assessments
serve as foundational tools for firms to understand the cybersecurity
risks they face across the range of the firm's activities and assets,''
and calls for firms to develop, implement and test cybersecurity
incident response plans.\31\ FINRA notes that one common deficiency
with respect to cybersecurity is ``failure to conduct adequate periodic
cybersecurity assessments.'' \32\ The critical security controls
established by the Council on CyberSecurity (``the Council'') call for
entities to ``[c]ontinuously acquire, assess, and take action on new
information in order to identify vulnerabilities, remediate, and
minimize the window of opportunity for attackers.'' \33\ The Council
notes that ``[o]rganizations that do not scan for vulnerabilities and
proactively address discovered flaws face a significant likelihood of
having their computer systems compromised.'' \34\ The Council's
critical security controls also call for entities to ``test the overall
strength of an organization's defenses (the technology, the processes,
and the people) by simulating the objectives and actions of an
attacker.'' \35\ The Council calls for implementation of this control
by conducting ``regular external and internal penetration tests to
identify vulnerabilities and attack vectors that can be used to exploit
enterprise systems successfully,'' from both outside and inside the
boundaries of the organization's network perimeter,\36\ and also calls
for use of vulnerability scanning and penetration testing in
concert.\37\
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\29\ FISMA section 3544(b)(5), available at http://csrc.nist.gov/drivers/documents/FISMA-final.pdf.
\30\ NIST Framework, Subcategory PR.IP-10, at 28, and Category
DE.DP, at 31, available at http://www.nist.gov/cyberframework/upload/cybersecurity-framework-021214.pdf.
\31\ FINRA, Report on Cybersecurity Practices (February 2015),
at 1-2, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
\32\ Id. at 8.
\33\ Council on CyberSecurity, The Critical Security Controls
for Effective Cyber Defense Version 5.1, Critical Security Control
(``CSC'') 4, at 27, available at http://www.counciloncybersecurity.org/critical-controls/.
\34\ Id.
\35\ Id., CSC 20, at 102.
\36\ Id., CSC 20-1, at 102.
\37\ Id., CSC 20-6, at 103.
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The Federal Financial Institutions Examination Council
(``FFIEC''),\38\ another important source of cybersecurity best
practices for financial sector entities, effectively summarized the
need for cybersecurity testing in today's cyber threat environment:
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\38\ The FFIEC includes the Board of Governors of the Federal
Reserve System, the Federal Deposit Insurance Corporation, the
Office of the Comptroller of the Currency, the Consumer Financial
Protection Bureau, the National Credit Union Administration, and the
State Liaison Committee of the Conference of State Bank Supervision.
Financial institutions should have a testing plan that
identifies control objectives; schedules tests of the controls used
to meet those objectives; ensures prompt corrective action where
deficiencies are identified; and provides independent assurance for
compliance with security policies. Security tests are necessary to
identify control deficiencies. An effective testing plan identifies
the key controls, then tests those controls at a frequency based on
the risk that the control is not functioning. Security testing
should include independent tests conducted by personnel without
direct responsibility for security administration. Adverse test
results indicate a control is not functioning and cannot be relied
upon. Follow-up can include correction of the specific control, as
well as a search for, and correction of, a root cause. Types of
tests include audits, security assessments, vulnerability scans, and
penetration tests.\39\
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\39\ FFIEC, E-Banking IT Examination Handbook, at 30, available
at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_E-Banking.pdf.
Some experts note that cybersecurity testing may become a
requirement for obtaining cyber insurance. Under such an approach,
coverage might be conditioned on cybersecurity testing and assessment
followed by implementation of appropriate prevention and detection
procedures.\40\
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\40\ PriceWaterhouseCoopers, Insurance 2020 and Beyond: Reaping
the Dividends of Cyber Resilience, 2015, available at http://www.pwc.com/gx/en/insurance/publications/assets/reaping-dividends-cyber-resilience.pdf.
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Cybersecurity testing is also supported internationally. IOSCO has
emphasized the importance of testing to ensure effective controls, in
light of risks posed by the complexity of markets caused by
technological advances.\41\ IOSCO has stated that trading venues should
``appropriately monitor critical systems and have appropriate control
mechanisms in place.'' \42\ The European Securities and Markets
Authority (``ESMA'') Guidelines for automated trading systems call for
trading platforms to test trading systems and system updates to ensure
that the system meets regulatory requirements, that risk management
controls work as intended, and that the system can function effectively
in stressed market conditions.\43\ Further, the Principles for
Financial Market Infrastructures (``PFMIs'') published by the Bank for
International Settlements' Committee on Payments and Market
Infrastructures (``CPMI'') and IOSCO's Technical Committee (together,
``CPMI-IOSCO'') note that with respect to operational risks, which
include cyber risk, ``[a financial market infrastructure]'s
arrangements with participants, operational policies, and operational
procedures should be periodically, and whenever necessary, tested and
reviewed, especially after significant changes occur to the system or a
major incident occurs. . . .'' \44\
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\41\ IOSCO Consultation Report, Mechanisms for Trading Venues to
Effectively Manage Electronic Trading Risks and Plans for Business
Continuity (April 2015) (``IOSCO 2015 Consultation Report''), at 3,
available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD483.pdf.
\42\ Id. at 9.
\43\ European Securities and Markets Authority (``ESMA''),
Guidelines: Systems and controls in an automated trading environment
for trading platforms, investment firms and competent authorities
(February 24, 2012), at 7, available at http://www.esma.europa.eu/system/files/esma_2012_122_en.pdf.
\44\ CPMI-IOSCO, Principles for Financial Market
Infrastructures, (Apr. 2012), at 96, available at http://www.iosco.org/library/pubdocs/pdf/IOSCOPD377.pdf. See also CPMI,
Cyber resilience in financial market infrastructures, (Nov. 2014),
available at http://www.bis.org/cpmi/publ/d122.pdf.
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B. Categories of Risk Analysis and Oversight Applicable to All DCMs,
SEFs, and SDRs
The system safeguards provisions of the Commodity Exchange Act
(``Act'' or ``CEA'') and Commission regulations applicable to all DCMs,
SEFs, and SDRs require each DCM, SEF, and SDR to maintain a program of
risk analysis and oversight to identify and minimize sources of
operational risk.\45\ The Act provides that each such entity must have
appropriate controls and procedures for this purpose, and must have
automated systems that are reliable, secure, and have adequate scalable
capacity.\46\ Commission regulations concerning system safeguards for
DCMs, SEFs, and SDRs provide that the program of risk analysis and
oversight required of each such entity must address specified
categories of risk analysis and oversight, and applicable regulations
and guidance provide that such entities should follow generally
accepted standards and best practices for development, operation,
reliability, security, and capacity of automated systems.\47\
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\45\ 7 U.S.C. 7(d)(20); 7 U.S.C. 5h(f)(14); 7 U.S.C. 24a(c)(8);
17 CFR 38.1050; 17 CFR 37.1400; 17 CFR 49.24(a)(1).
\46\ Id.
\47\ 17 CFR 38.1051(a) and (b); 17 CFR 37.1401(a); Appendix A to
Part 37, Core Principle 14 of Section 5h of the Act--System
Safeguards (a) Guidance (1) Risk analysis and oversight program; 17
CFR 49.24(b) and (c).
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Six categories of risk analysis and oversight are specified in the
Commission's current regulations for DCMs, SEFs, and SDRs: Information
security; business continuity-disaster recovery (``BC-DR'') planning
and resources; capacity and performance planning; systems operations;
systems development and quality assurance; and physical security and
environmental controls.\48\ The current DCM, SEF, and SDR system
safeguards regulations address specific requirements concerning BC-DR,
but do not provide any further guidance respecting the other five
required categories.\49\ In this Notice of Proposed Rulemaking
(``NPRM''), the Commission proposes to clarify what is already required
of all DCMs, SEFs, and SDRs regarding the other five specified
categories, by defining each of them. The proposed definitions are
grounded in generally accepted best practices regarding appropriate
risk analysis and oversight with respect to system safeguards, which
all DCMs, SEFs, and SDRs should follow as provided in the current
regulations. As the proposed definitions explicitly state, they are not
intended to be all-inclusive; rather, they highlight important aspects
of the required risk analysis and oversight categories.
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\48\ See 17 CFR 38.1051(a); 17 CFR 37.1401(a); and 17 CFR
49.24(b).
\49\ See 17 CFR 38.1051(c) and 38.1051(i) (for DCMs); 17 CFR
37.1401(b) and Appendix A to Part 37, Core Principle 14 of Section
5h of the Act--System Safeguards (a) Guidance (3) Coordination (for
SEFs); 17 CFR 49.24(d) and 49.24(k) (for SDRs).
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The Commission is also proposing to add and define another
enumerated category, enterprise risk management and governance, to the
list of required categories of system safeguards-related risk analysis
and oversight. As explained below, generally accepted best practices
regarding appropriate risk analysis and oversight with respect to
system safeguards--which form the basis for the proposed definition of
this added category--also establish enterprise risk management and
governance as an important category of system safeguards-related risk
analysis and oversight. This category is therefore implicit in the
Commission's existing system safeguard regulations, which already
require each DCM, SEF, and SDR to maintain a program of risk analysis
and oversight with respect to system safeguards.\50\ The proposed rule
would make it an explicitly listed category for the sake of clarity. As
with the other proposed category definitions, the definition of the
proposed additional category of enterprise risk management and
governance clarifies what is already required and will continue to be
required of all DCMs, SEFs, and SDRs with regard to their system
safeguards-related risk analysis and oversight programs under the
existing rules. As such, addition of this category does not impose
additional obligations on such entities. The Commission sets forth
below the best practices surrounding enterprise risk management and
governance. In connection with its further definition of five of the
other six categories of risk analysis and oversight already enumerated
in the existing regulations, the Commission will also cite some
examples of the best practices underlying those categories.
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\50\ 17 CFR 38.1050(a) (for DCMs); 17 CFR 37.1400(a) (for SEFs);
17 CFR 49.24(a)(1) (for SDRs).
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1. Enterprise Risk Management and Governance
As stated in the proposed rules, this category of risk analysis and
oversight includes the following five areas:
Assessment, mitigation, and monitoring of security and
technology risk.
Capital planning and investment with respect to security
and technology.
Board of directors and management oversight of system
safeguards.
Information technology audit and controls assessments.
Remediation of deficiencies.
The category also includes any other enterprise risk management and
governance elements included in generally accepted best practices. As
noted above, this category of risk analysis and oversight is already
implicit in the Commission's existing system safeguards rules for all
DCMs, SEFs, and SDRs, as an essential part of an adequate program of
risk analysis and oversight according to generally accepted standards
and best practices. The Commission sets out below the best practices
basis for its proposed definition of this category, which like the
other proposed definitions is provided for purposes of clarity.
a. Assessment, Mitigation, and Monitoring of Security and
Technology Risk
In the area of assessment, mitigation, and monitoring of security
and technology risk, NIST calls for organizations to develop
appropriate and documented risk assessment policies, to make effective
risk assessments, and to develop and implement a comprehensive risk
management strategy relating to the operation and use of information
systems.\51\ NIST notes that risk assessment is a fundamental component
of an organization's risk management process, which should include
framing, assessing, responding to, and monitoring risks associated with
operation of information systems or with any compromise of data
confidentiality, integrity, or availability.\52\ According to NIST:
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\51\ See NIST Special Publication (``SP'') 800-53 Rev. 4,
Security and Privacy Controls for Federal Information Systems and
Organizations Controls (``NIST SP 800-53 Rev. 4''), RA-1, RA-2, and
RA-3, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\52\ NIST SP 800-39, Managing Information Security Risk:
Organization, Mission, and Information System View (March 2011)
(``NIST SP 800-39''), available at http://csrc.nist.gov/publications/nistpubs/800-39/SP800-39-final.pdf.
Leaders must recognize that explicit, well-informed risk-based
decisions are necessary in order to balance the benefits gained from
the operation and use of these information systems with the risk of
the same systems being vehicles through which purposeful attacks,
environmental disruptions, or human errors cause mission or business
failure.\53\
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\53\ Id. at 1.
NIST standards further provide that an organization's risk
management strategy regarding system safeguards
[[Page 80144]]
should include risk mitigation strategies, processes for evaluating
risk across the organization, and approaches for monitoring risk over
time.\54\ ISACA's Control Objectives for Information and Related
Technology (``COBIT'') 5 calls for organizations to continually
identify, assess, and reduce IT-related risk in light of levels of
system safeguards risk tolerance set by the organization's executive
management.\55\ As part of such assessment, COBIT 5 calls for
maintaining an updated risk profile that includes known risks and risk
attributes as well as an inventory of the organization's related
resources, capabilities, and controls.\56\
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\54\ NIST SP 800-53 Rev. 4, control PM-9 Risk Management
Strategy, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\55\ ISACA, Control Objectives for Information and Related
Technology (``COBIT'') 5, Align, Plan and Organize (``APO'') APO12,
available at https://cobitonline.isaca.org/.
\56\ Id. at APO12.03.
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b. Capital Planning and Investment Respecting Security and Technology
Security and technology capital planning and investment are also
recognized as best practices for enterprise risk management and
governance. NIST standards call for entities to determine, as part of
their capital planning and investment control process, both the
information security requirements of their information systems and the
resources required to protect those systems.\57\ NIST standards further
provide that entities should ensure that their capital planning and
investment includes the resources needed to implement their information
security programs, and should document all exceptions to this
requirement.\58\ ISACA's COBIT 5 also addresses capital planning,
budgeting, and investment with respect to information technology and
system safeguards.\59\
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\57\ NIST 800-53 Rev. 4, SA-2, Allocation of Resources,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\58\ Id. at PM-3, Information Security Resources.
\59\ COBIT 5, APO06, available at https://cobitonline.isaca.org/
.
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c. Board of Directors and Management Oversight of System Safeguards
Board of directors and management oversight of system safeguards is
another recognized best practice for enterprise risk management and
governance. NIST defines requirements for board of directors and
management oversight of cybersecurity.\60\ The FFIEC calls for
financial sector organizations to review the system safeguards-related
credentials of the board of directors or the board committee
responsible for oversight of technology and security, and to determine
whether the directors responsible for such oversight have the
appropriate level of experience and knowledge of information technology
and related risks to enable them to provide adequate oversight.\61\ If
directors lack the needed level of experience and knowledge, the FFIEC
calls for the organization to consider bringing in outside independent
consultants to support board oversight.\62\ ISACA's COBIT 5 calls for
entities to maintain effective governance of the enterprise's IT
mission and vision, and to maintain mechanisms and authorities for
managing the enterprise's use of IT in support of its governance
objectives, in light of the criticality of IT to its enterprise
strategy and its level of operational dependence on IT.\63\ In a three-
lines-of-defense model for cybersecurity, the important third line of
defense consists of having an independent audit function report to the
board of directors concerning independent tests, conducted with
sufficient frequency and depth, that determine whether the organization
has appropriate and adequate cybersecurity controls in place which
function as they should.\64\
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\60\ See, e.g., NIST 800-53 Rev. 4, Program Management Controls
PM-1, Information Security Program Plan, PM-2, Senior Information
Security Officer, and PM 9, Risk Management Strategy, available at
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\61\ FFIEC, Audit IT Examination Handbook, Objective 3, at A-2,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
\62\ Id.
\63\ COBIT 5, APO01, available at https://cobitonline.isaca.org/
.
\64\ CFTC Roundtable, at 242-243. In addition, boards of
directors can now face litigation alleging breach of fiduciary duty
based on failure to monitor cybersecurity risk and ensure
maintenance of proper cybersecurity controls. See, e.g., Kulla v.
Steinhafel, D. Minn. No. 14-CV-00203, (U.S. Dist. 2014) (shareholder
derivative suit against Target board of directors), and Palkon v.
Holmes, D. NJ No. 2:14-CV-01234 (U.S. Dist. 2014) (shareholder
derivative suit against Wyndham Worldwide Corporation board
members).
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d. Information Technology Audit and Controls Assessment
Information technology audit and controls assessments are an
additional major aspect of best practices regarding enterprise risk
management and governance. As the FFIEC has stated:
A well-planned, properly structured audit program is essential
to evaluate risk management practices, internal control systems, and
compliance with corporate policies concerning IT-related risks at
institutions of every size and complexity. Effective audit programs
are risk-focused, promote sound IT controls, ensure the timely
resolution of audit deficiencies, and inform the board of directors
of the effectiveness of risk management practices.\65\
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\65\ FFIEC, Audit IT Examination Handbook, at 1, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
The FFIEC has also noted that today's rapid rate of change with
respect to information technology and cybersecurity make IT audits
essential to the effectiveness of an overall audit program.\66\
Further:
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\66\ Id.
The audit program should address IT risk exposures throughout
the institution, including the areas of IT management and strategic
planning, data center operations, client/server architecture, local
and wide-area networks, telecommunications, physical and information
security . . . systems development, and business continuity
planning. IT audit should also focus on how management determines
the risk exposure from its operations and controls or mitigates that
risk.\67\
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\67\ Id.
e. Remediation of Deficiencies
Finally, remediation of deficiencies is another important part of
enterprise risk management and governance best practices. NIST calls
for organizations to ensure that plans of action and milestones for IT
systems and security are developed, maintained, and documented, and for
organizations to review such plans for consistency with organization-
wide risk management strategy and priorities for risk response
actions.\68\ As noted above, ISACA's COBIT 5 establishes best practices
calling for entities to reduce IT-related risk within levels of
tolerance set by enterprise executive management.\69\ The FFIEC calls
for management to take appropriate and timely action to address
identified IT problems and weaknesses, and to report such actions to
the board of directors.\70\ FFIEC further calls for the internal audit
function to determine whether management sufficiently corrects the root
causes of all significant system safeguards deficiencies.\71\
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\68\ NIST 800-53 Rev. 4, control PM-4, Plan of Action and
Milestones Process, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\69\ COBIT 5, APO12, available at https://cobitonline.isaca.org/
.
\70\ FFIEC, Audit IT Examination Handbook, Objective 6, at A-4,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
\71\ Id.
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2. Information Security
As stated in the proposed rules, this category of risk analysis and
oversight includes, without limitation, controls relating to each of
the following:
[[Page 80145]]
Access to systems and data (e.g., least privilege,
separation of duties, account monitoring and control).\72\
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\72\ NIST SP 800-53 Rev. 4, Access Controls (``AC'') control
family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on CyberSecurity,
CSC 7, 12, 15, available at http://www.counciloncybersecurity.org/critical-controls/.
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User and device identification and authentication.\73\
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\73\ NIST SP 800-53 Rev. 4, Identification and Authentication
(``IA'') control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on
CyberSecurity, CSC 1, 2, available at http://www.counciloncybersecurity.org/critical-controls/.
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Security awareness training.\74\
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\74\ NIST SP 800-53 Rev. 4, Awareness and Training (``AT'')
control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on CyberSecurity,
CSC 9, available at http://www.counciloncybersecurity.org/critical-controls/.
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Audit log maintenance, monitoring, and analysis.\75\
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\75\ NIST SP 800-53 Rev. 4, Audit and Accountability (``AU'')
control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on CyberSecurity,
CSC 14, available at http://www.counciloncybersecurity.org/critical-controls/.
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Media protection.\76\
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\76\ NIST SP 800-53 Rev. 4, Media Protection (``MP'') control
family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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Personnel security and screening.\77\
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\77\ NIST SP 800-53 Rev. 4, Personnel Security (``PS'') control
family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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Automated system and communications protection (e.g.,
malware defenses, software integrity monitoring).\78\
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\78\ NIST SP 800-53 Rev. 4, System and Communication Protection
(``SC'') control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on
CyberSecurity, CSC 7, 10, 11, 13, available at http://www.counciloncybersecurity.org/critical-controls/.
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Automated system and information integrity (e.g., network
port control, boundary defenses, encryption).\79\
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\79\ NIST SP 800-53 Rev. 4, System and Information Integrity
(``SI'') control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on
CyberSecurity, CSC 3, 5, 17, available at http://www.counciloncybersecurity.org/critical-controls/.
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Vulnerability management.\80\
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\80\ NIST SP 800-53 Rev. 4, control RA-5, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
Council on CyberSecurity, CSC 4, 5, available at http://www.counciloncybersecurity.org/critical-controls/.
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Penetration testing.\81\
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\81\ NIST SP 800-53 Rev. 4, control CA-8, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
Council on CyberSecurity, CSC 20, available at http://www.counciloncybersecurity.org/critical-controls/.
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Security incident response and management.\82\
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\82\ NIST SP 800-53 Rev. 4, Incident Response (``IR'') control
family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; NIST SP 800-61 Rev. 2,
Computer Security Incident Handling Guide (``NIST SP 800-61 Rev.
2''), available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-61r2.pdf.
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The category also includes any other elements of information
security included in generally accepted best practices. All of these
important aspects of information security are grounded in generally
accepted standards and best practices, such as the examples cited in
the footnotes for each aspect given above. The Commission believes that
information security programs that address each of these aspects
continue to be essential to maintaining effective system safeguards in
today's cybersecurity threat environment.
3. Business Continuity-Disaster Recovery Planning and Resources
The Commission's current system safeguards regulations for DCMs,
SEFs, and SDRs already contain detailed description of various aspects
of this category of risk analysis and oversight. The regulations
require DCMs, SEFs, and SDRs to maintain a BC-DR plan and BC-DR
resources, emergency procedures, and backup facilities sufficient to
enable timely resumption of the DCM's, SEF's, or SDR's operations, and
resumption of its fulfillment of its responsibilities and obligations
as a CFTC registrant following any such disruption.\83\ In this
connection, the regulations address applicable recovery time objectives
for resumption of operations.\84\ The regulations also require regular,
periodic, objective testing and review of DCM, SEF, and SDR BC-DR
capabilities.\85\ Applicable regulations and guidance provide that the
DCM, SEF, or SDR, to the extent practicable, should coordinate its BC-
DR plan with those of other relevant parties as specified, initiate and
coordinate periodic, synchronized testing of such coordinated
plans.\86\ They further provide that the DCM, SEF, or SDR should ensure
that its BC-DR plan takes into account the BC-DR plans of its
telecommunications, power, water, and other essential service
providers.\87\ In addition, the regulations and guidance call for DCMs,
SEFs, and SDRs to follow generally accepted best practices and
standards with respect to BC-DR planning and resources, as similarly
provided for the other specified categories of system safeguards risk
analysis and oversight.\88\
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\83\ 17 CFR 38.1051(c) (for DCMs); 17 CFR 37.1401(b) (for SEFs);
17 CFR 49.24(a)(2) (for SDRs).
\84\ 17 CFR 38.1051(c) and (d) (for DCMs); 17 CFR 37.1401(b) and
(c) (for SEFs); 17 CFR 49.24(d), (e), and (f) (for SDRs).
\85\ 17 CFR 38.1051(h) (for DCMs); 17 CFR 37.1401(g) (for SEFs);
17 CFR 49.24(j) (for SDRs).
\86\ 17 CFR 38.1051(i)(1) and (2) (for DCMs); Appendix A to Part
37, Core Principle 14 of Section 5h of the Act--System Safeguards
(a) Guidance (3)(i) and (ii) (for SEFs); 17 CFR 49.24(k)(1) and (2)
(for SDRs).
\87\ 17 CFR 38.1051(i)(3) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (3)(iii) (for SEFs); 17 CFR 49.24(k)(3) (for SDRs).
\88\ 17 CFR 38.1051(b) (for DCMs); Appendix A to Part 37, Core
Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (1) Risk analysis and oversight program (for SEFs); 17 CFR
49.24(c) (for SDRs). For such best practices, see generally, e.g.,
NIST SP 800-34 Rev. 1, Contingency Planning Guide for Federal
Information Systems, available at http://csrc.nist.gov/publications/nistpubs/800-34-rev1/sp800-34-rev1_errata-Nov11-2010.pdf.
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Because the current system safeguards regulations already address
these various aspects of the category of BC-DR planning and resources,
the Commission is not proposing to further define this category at this
time. The Commission notes that participants in the CFTC Roundtable
discussed whether BC-DR planning and testing is at an inflection point:
while such planning and testing has traditionally focused on kinetic
events such as storms or physical attacks by terrorists, today
cybersecurity threats may also result in loss of data integrity or
long-term cyber intrusion. Future development of different types of BC-
DR testing focused on cyber resiliency, and of new standards for
recovery and resumption of operations may be warranted.\89\
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\89\ CFTC Roundtable, at 277-363.
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4. Capacity and Performance Planning
As provided in the proposed rule, this category of risk analysis
and oversight includes (without limitation): Controls for monitoring
DCM, SEF, or SDR systems to ensure adequate scalable capacity (e.g.,
testing, monitoring, and analysis of current and projected future
capacity and performance, and of possible capacity degradation due to
planned automated system changes); \90\ and any other elements of
capacity and performance planning included in generally accepted best
practices. All of these important aspects of capacity and performance
planning are grounded in generally accepted standards and best
practices, such as the examples cited in the footnote above. The
Commission believes that capacity and performance planning programs
that address these aspects are essential to maintaining
[[Page 80146]]
effective system safeguards in today's cybersecurity threat
environment.
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\90\ ISACA, COBIT 5, Build, Acquire and Implement (``BAI'')
BAI04, available at https://cobitonline.isaca.org/; FFIEC,
Operations IT Examination Handbook, at 33-34, 35, 40-41, available
at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Operations.pdf.
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5. Systems Operations
As set out in the proposed rule, this category of risk analysis and
oversight includes (without limitation) each of the following elements:
System maintenance.\91\
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\91\ NIST SP 800-53 Rev. 4, Maintenance (``MA'') control family,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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Configuration management (e.g., baseline configuration,
configuration change and patch management, least functionality,
inventory of authorized and unauthorized devices and software).\92\
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\92\ NIST SP 800-53 Rev. 4, Configuration Management (``CM'')
control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; Council on CyberSecurity,
CSC 1, 2, 3, 10, 11, 12, available at http://www.counciloncybersecurity.org/critical-controls/.
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Event and problem response and management.\93\
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\93\ FFIEC, Operations IT Examination Handbook, at 28, and
Objective 10, at A-8 to A-9, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Operations.pdf;
ISACA, COBIT 5, Deliver, Service and Support (``DSS'') process
DSS03, available at https://cobitonline.isaca.org/.
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It also includes any other elements of system operations included
in generally accepted best practices. All of these important aspects of
systems operations are grounded in generally accepted standards and
best practices, for example those cited in the footnotes for each
aspect given above. The Commission believes that systems operations
programs that address each of these aspects are essential to
maintaining effective system safeguards in today's cybersecurity threat
environment.
6. Systems Development and Quality Assurance
As set out in the proposed rule, this category of risk analysis and
oversight includes (without limitation) each of the following elements:
Requirements development.\94\
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\94\ NIST SP 800-53 Rev. 4, control SA-4, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
FFIEC Development and Acquisition IT Examination Handbook, at 2-3,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_DevelopmentandAcquisition.pdf.
---------------------------------------------------------------------------
Pre-production and regression testing.\95\
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\95\ NIST SP 800-53 Rev. 4, controls SA-8, SA-10, SA-11,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; NIST SP 800-64 Rev. 2, Security Considerations
in the System Development Life Cycle (``NIST SP 800-64 Rev. 2''), at
26-27, available at http://csrc.nist.gov/publications/nistpubs/800-64-Rev2/SP800-64-Revision2.pdf; FFIEC, Development and Acquisition
IT Examination Handbook, at 8-9, and Objective 9, at A-6 to A-7,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_DevelopmentandAcquisition.pdf.
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Change management procedures and approvals.\96\
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\96\ Id. at 47-48.
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Outsourcing and vendor management.\97\
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\97\ NIST SP 800-53 Rev. 4, controls SA-9, SA-12, available at
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf; FFIEC, Outsourcing Technology Services IT Examination
Handbook, at 2, available at http://ithandbook.ffiec.gov/ITBooklets/
FFIEC_ITBooklet_OutsourcingTechnologyServices.pdf.
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Training in secure coding practices.\98\
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\98\ NIST SP 800-53 Rev. 4, controls AT-3, SA-11, available at
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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It also includes any other elements of systems development and
quality assurance included in generally accepted best practices. All of
these important aspects of systems development and quality assurance
are grounded in generally accepted standards and best practices, such
as the examples cited in the footnotes for each aspect given above. The
Commission believes that systems development and quality assurance
programs that address each of these aspects are essential to
maintaining effective system safeguards in today's cybersecurity threat
environment.
7. Physical Security and Environmental Controls.
As stated in the proposed rule, this category of risk analysis and
oversight includes (without limitation) each of the following elements:
\99\
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\99\ NIST SP 800-53 Rev. 4, Physical and Environmental
Protection (PE) control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
FFIEC, Operations IT Examination Handbook, at 15-18, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Operations.pdf.
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Physical access and monitoring.
Power, telecommunication, environmental controls.
Fire protection.
It also includes any other elements of physical security and
environmental controls included in generally accepted best practices.
All of these important aspects of physical security and environmental
controls are grounded in generally accepted standards and best
practices, such as the examples cited in the footnote given above. The
Commission believes that physical security and environmental controls
programs that address each of these aspects are essential to
maintaining effective system safeguards in today's cybersecurity threat
environment.
C. Requirements To Follow Best Practices, Ensure Testing Independence,
and Coordinate BC-DR Plans
The Commission's current regulations for DCMs and SDRs and its
guidance for SEFs provide that such entities should follow best
practices in addressing the categories which their programs of risk
analysis and oversight are required to include.\100\ They provide that
such entities should ensure that their system safeguards testing,
whether conducted by contractors or employees, is conducted by
independent professionals (i.e., persons not responsible for
development or operation of the systems or capabilities being
tested).\101\ They further provide that such entities should coordinate
their BC-DR plans with the BC-DR plans of market participants and
essential service providers.\102\
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\100\ See Sec. 38.1051(b) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (1) Risk analysis and oversight program (for SEFs); Sec.
49.24(c) (for SDRs).
\101\ See Sec. 38.1051(h) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (2) Testing (for SEFs); Sec. 49.24(j) (for SDRs).
\102\ See Sec. 38.1051(i) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (3) Coordination (for SEFs); Sec. 49.24(k) (for SDRs).
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In this NPRM, the Commission is proposing to make these three
provisions mandatory for all DCMs, SEFs, and SDRs. The proposed rule
provisions reflect this at appropriate points.\103\ Making these
provisions mandatory will align the system safeguards rules for DCMs,
SEFs, and SDRs with the Commission's system safeguards rules for DCOs,
which already contain mandatory provisions in these respects. The
Commission believes that in today's cybersecurity threat environment
(discussed above), following generally accepted standards and best
practices, ensuring tester independence, and coordinating BC-DR plans
appropriately are essential to adequate system safeguards and cyber
resiliency for DCMs, SEFs, and SDRs, as well as for DCOs. For this
reason, the Commission believes that making these provisions mandatory
will benefit DCMs, SEFs, and SDRs, their market participants and
customers, and the public interest. The Commission
[[Page 80147]]
understands that most DCMs, SEFs, and SDRs have been following the
provisions of the current regulations and guidance in these respects,
and thus already meet these proposed requirements.
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\103\ Regarding following best practices, see proposed rule
Sec. 38.1051(b) (for DCMs); Sec. 37.1401(b) (for SEFs); and Sec.
49.24(c) (for SDRs). Regarding tester independence, see proposed
rules Sec. Sec. 38.1051(h)(2)(iv), (3)(i)(C), (3)(ii)(B), (4)(iii),
(5)(iv), and (6)(ii) (for DCMs); Sec. Sec. 37.1401(h)(2)(i),
(3)(i)(A), (4)(i), (5)(iii), and (6)(i) (for SEFs); and Sec. Sec.
49.24(j)(2)(iii), (3)(i)(B), (4)(ii), (5)(iv), and (6)(ii) (for
SDRs). Regarding BC-DR plan and plan testing coordination, see
proposed rule Sec. 38.1051(i) (for DCMs); Sec. 37.1401(i) (for
SEFs); and Sec. 49.24(k) (for SDRs).
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D. Updating of Business Continuity-Disaster Recovery Plans and
Emergency Procedures
The Commission is proposing amendment of the current system
safeguards rules requiring DCMs, SEFs, and SDRs to maintain a business
continuity-disaster recovery plan and emergency procedures, by adding a
requirement for such plans and procedures to be updated as frequently
as required by appropriate risk analysis, but at a minimum at least
annually. Updating such plans and procedures at least annually is a
best practice. NIST standards provide that once an organization has
developed a BC-DR plan, ``the organization should implement the plan
and review it at least annually to ensure the organization is following
the roadmap for maturing the capability and fulfilling their [sic]
goals for incident response.'' \104\ NIST also states that information
systems contingency plans (``ISCPs'') ``should be reviewed for accuracy
and completeness at least annually, as well as upon significant changes
to any element of the ISCP, system, mission/business processes
supported by the system, or resources used for recovery procedures.''
\105\
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\104\ NIST SP 800-61 Rev. 2, at 8, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-61r2.pdf.
\105\ NIST SP 800-34 Rev. 1, at 8, available at http://csrc.nist.gov/publications/nistpubs/800-34-rev1/sp800-34-rev1_errata-Nov11-2010.pdf.
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As noted previously, current Commission system safeguards
regulations and guidance provide that all DCMs, SEFs, and SDRs should
follow best practices in their required programs of risk analysis and
oversight. The Commission understands that many DCMs, SEFs, and SDRs
currently update their BC-DR plans and emergency procedures at least
annually. In light of these facts, the Commission believes that the
proposed requirement for updating such plans and procedures as often as
indicated by appropriate risk analysis, and at a minimum at least
annually, may not impose substantial additional burdens or costs on
DCMs, SEFs, or SDRs.
E. System Safeguards-Related Books and Records Obligations
The Commission's current system safeguards rules for all DCMs,
SEFs, and SDRs contain a provision addressing required production of
system safeguards-related documents to the Commission on request.\106\
The proposed rule includes a provision amending these document
production provisions, to further clarify requirements for document
production by all DCMs, SEFs, and SDRs relating to system safeguards.
The proposed provision would require each DCM, SEF, and SDR to provide
to the Commission, promptly on the request of Commission staff: Current
copies of its BC-DR plans and other emergency procedures, updated at a
frequency determined by appropriate risk analysis but at a minimum no
less than annually; all assessments of its operational risks or system
safeguards-related controls; all reports concerning system safeguards
testing and assessment required by the Act or Commission regulations;
and all other documents requested by Commission staff in connection
with Commission oversight of system safeguards.
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\106\ 17 CFR 38.1051(g) and (h) (for DCMs); 17 CFR 37.1401(f)
and (g) (for SEFs); 17 CFR 49.24(i) and (j) (for SDRs).
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As noted in the text of the proposed rule, production of all such
books and records is already required by the Act and Commission
regulations, notably by Commission regulation Sec. 1.31.\107\ No
additional cost or burden is created by this provision. This section is
included in the proposed rule solely to provide additional clarity to
DCMs, SEFs, and SDRs concerning their statutory and regulatory
obligation to produce all such system safeguards-related documents
promptly upon request by Commission staff.
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\107\ 17 CFR 1.31; see also 17 CFR 38.1051(g) and (h); 17 CFR
37.1401(f) and (g); 17 CFR 49.24(i) and (j).
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F. Cybersecurity Testing Requirements for DCMs, SEFs, and SDRs
1. Clarification of Existing Testing Requirements for All DCMs, SEFs,
and SDRs
The Act requires each DCM, SEF, and SDR to develop and maintain a
program of system safeguards-related risk analysis and oversight to
identify and minimize sources of operational risk.\108\ The Act
mandates that in this connection each DCM, SEF and SDR must develop and
maintain automated systems that are reliable, secure, and have adequate
scalable capacity, and must ensure system reliability, security, and
capacity through appropriate controls and procedures.\109\
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\108\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\109\ Id.
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The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\110\ In this NPRM, as discussed in
detail below, the Commission proposes to clarify this system safeguards
and cybersecurity testing requirement, by specifying and defining five
types of system safeguards testing that a DCM, SEF, or SDR necessarily
must perform to fulfill the requirement. The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting each type of testing addressed by the proposed rule.
Each of these types of testing is a generally recognized best practice
for system safeguards.\111\ For these reasons, the
[[Page 80148]]
provisions of the proposed rule calling for each DCM, SEF, and SDR to
conduct each of these types of testing and assessment clarify the
testing requirements of the existing system safeguards rules for DCMs,
SEFs, and SDRs; they do not impose new requirements. Providing this
clarification of the testing provisions of the existing system
safeguards rules is a primary purpose of this proposed rule.
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\110\ 17 CFR 38.1051(h) (for DCMs); 17 CFR 37.1401(g) (for
SEFs); 17 CFR 49.24(j) (for SDRs).
\111\ The Commission's existing rules and guidance provide that
a DCM's, SEF's, or SDR's entire program of risk analysis and
oversight, which includes testing, should be based on generally
accepted standards and best practices with respect to the
development, operation, reliability, security, and capacity of
automated systems. See 17 CFR 38.1051(h) (for DCMs); Appendix A to
Part 37, Core Principle 14 of Section 5h of the Act--System
Safeguards (a) Guidance (1) Risk analysis and oversight program (for
SEFs); 17 CFR 49.24(j) (for SDRs). Each of the types of testing
addressed in this NPRM--vulnerability testing, penetration testing,
controls testing, security incident response plan testing, and
enterprise technology risk assessment--has been a generally
recognized best practice for system safeguards since before the
testing requirements of the Act and the current regulations were
adopted. The current system safeguards provisions of the CEA and the
Commission's regulations became effective in August 2012. Generally
accepted best practices called for each type of testing specified in
the proposed rule well before that date, as shown in the following
examples. Regarding all five types of testing, see, e.g., NIST SP
800-53A, Rev. 1, Guide for Assessing the Security Controls in
Federal Information Systems and Organizations (``NIST 800-53A
Rev.1''), at E1, F67, F230, F148, and F226, June 2010, available at
http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf. Regarding vulnerability testing, see, e.g., NIST SP
800-53A Rev. 1, at F67, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf; and NIST SP 800-115, Technical Guide to Information
Security Testing and Assessment, at 5-2, September 2008, available
at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
Regarding penetration testing, see, e.g., NIST Special Publication
(``SP'') 800-53A, Rev. 1, at E1, June 2010, available at: http://csc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf; and NIST 800-115, at 4-4, September 2008, available at:
http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
Regarding controls testing, see, e.g., NIST 800-53A, Rev. 1, at 13
and Appendix F1, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf.
Regarding security incident response plan testing, see, e.g., NIST
800-53A, Rev. 1, at F148, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf. Regarding enterprise technology risk assessment, see,
e.g., NIST 800-53A, Rev.1, at F226, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf.
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The Commission's clarification of existing testing requirements for
DCMs, SEFs, and SDRs by specifying and defining five types of
cybersecurity testing essential to fulfilling those testing
requirements is designed to set out high-level, minimum requirements
for these types of testing, with the expectation that the particular
ways in which DCMs, SEFs, and SDRs conduct such testing may change as
accepted standards and industry best practices develop over time and
are reflected in the DCM's, SEF's, or SDR's risk analysis. This
parallels the inclusion in the Commission's existing system safeguards
rules and guidance for DCMs, SEFs, and SDRs of provisions that call for
those entities to follow generally accepted standards and best
practices in their programs of risk analysis and oversight with respect
to system safeguards. Those similarly high-level provisions were also
designed to allow DCMs, SEFs, and SDRs flexibility in adapting their
programs to current industry best practices, which the Commission
recognized and continues to recognize will evolve over time.
2. New Minimum Testing Frequency and Independent Contractor Testing
Requirements for Covered DCMs and All SDRs
In this NPRM, as discussed in detail below, the Commission is also
proposing that covered DCMs (as defined) and all SDRs would be subject
to new minimum testing frequency requirements with respect to each type
of system safeguards testing included in the clarification of the
system safeguards testing requirement in the Commission's existing
system safeguards rules. To strengthen the objectivity and reliability
of the testing, assessment, and information available to the Commission
regarding covered DCM and SDR system safeguards, the Commission is also
proposing that for certain types of testing, covered DCMs and SDRs
would be subject to new independent contractor testing requirements.
The Commission believes that in light of the current cyber threat
environment described above, the minimum frequency requirements being
proposed are necessary and appropriate, and will give additional
clarity concerning what is required in this respect. As discussed
above, and discussed in detail below, the proposed minimum frequency
requirements are all grounded in generally accepted standards and best
practices.\112\ Best practices also call for testing by both entity
employees and independent contractors as a necessary means of ensuring
the effectiveness of cybersecurity testing and of the entity's program
of risk analysis and oversight.\113\
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\112\ See discussion above concerning the need for cybersecurity
testing.
\113\ Id.
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The Commission believes that the minimum testing frequency and
independent contractor testing requirements in the proposed rule should
be applied to DCMs whose annual total trading volume is five percent or
more of the annual total trading volume of all DCMs regulated by the
Commission, as well as to all SDRs. This would give DCMs that have less
than five percent of the annual total trading volume of all DCMs more
flexibility regarding the testing they must conduct. As a matter of
policy, the Commission believes it is appropriate to reduce possible
costs and burdens for smaller entities when it is possible to do so
consistent with achieving the fundamental goals of the Act and
Commission rules. Accordingly, the Commission believes that applying
the minimum frequency and independent contractor requirements in this
proposed rule only to DCMs whose annual volume is five percent or more
of the total annual volume of all regulated DCMs, and to SDRs, would be
appropriate, in light of the fact that smaller DCMs will still be
required to conduct testing of all the types clarified in the proposed
rule as essential to fulfilling the testing requirements of the
existing DCM system safeguards rules.\114\
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\114\ These considerations do not apply to SDRs. Each SDR
contains reported swap data that constitutes a unique part of the
total picture of the entire swap market that the Dodd-Frank Wall
Street Reform and Consumer Protection Act, Pub. L. 111-203, 124
Stat. 1376 (2010) (``Dodd-Frank Act'') requires the Commission to
have. Therefore, the highest level of system safeguards protection
must be required for all SDRs. The Commission also notes that,
because the Commission is proposing a parallel cybersecurity testing
rule that would cover all DCOs, a non-covered DCM that shares common
ownership and automated systems with a DCO would in practice fulfill
the testing frequency and independent contractor testing
requirements proposed for covered DCMs, by virtue of sharing
automated systems and system safeguards with the DCO.
---------------------------------------------------------------------------
To give effect to this concept, the proposed rule would make this
five percent volume threshold the basis for its definition of a
``covered designated contract market,'' and would require all DCMs to
report their annual total trading volume to the Commission each year,
as discussed below in section H. The proposed rule defines ``annual
total trading volume'' as the total number of all contracts traded on
or pursuant to the rules of a designated contract market. Under the
proposed rule, a DCM would become a covered DCM, and thus become
subject to the proposed testing frequency and independent contractor
testing requirements, if it meets the five percent volume threshold
with respect to calendar year 2015 or any calendar year thereafter.
It is possible that a DCM which has previously become a covered DCM
subject to these requirements by meeting the five percent volume
threshold could cease to meet the definition of a covered DCM if its
annual total trading volume later fell below the five percent volume
threshold. The proposed rule's frequency requirements for controls
testing and for independent contractor testing of key controls specify
that such testing must be performed no less frequently than every two
years, the longest minimum frequency requirement included in the
proposed rule. The Commission believes that a DCM which has become a
covered DCM should complete an entire cycle of the testing required of
covered DCMs before it ceases to be subject to those requirements by
virtue of its annual total trading volume falling below the five
percent threshold. Accordingly, the proposed rule's definition of
``covered designated contract market'' also specifies that such a DCM
would cease to be a covered DCM when it has fallen below the five
percent volume threshold for two consecutive years.
3. Vulnerability Testing
a. Need for Vulnerability Testing
Testing to identify cyber and automated system vulnerabilities is a
significant component of a DCM's, SEF's, or SDR's program of risk
analysis
[[Page 80149]]
and oversight to identify and minimize sources of operational risk, and
a necessary prerequisite for remediating vulnerabilities, minimizing
exposure to attackers, and enhancing automated system resilience in the
face of cyber threats. The Council on Cybersecurity explains the need
for ongoing vulnerability testing as follows:
Cyber defenders must operate in a constant stream of new
information: Software updates, patches, security advisories, threat
bulletins, etc. Understanding and managing vulnerabilities has
become a continuous activity, requiring significant time, attention,
and resources.
Attackers have access to the same information, and can take
advantage of gaps between the appearance of new knowledge and
remediation. For example, when new vulnerabilities are reported by
researchers, a race starts among all parties, including: Attackers
(to ``weaponize'', deploy an attack, exploit); vendors (to develop,
deploy patches or signatures and updates), and defenders (to assess
risk, regression-test patches, install).
Organizations that do not scan for vulnerabilities and
proactively address discovered flaws face a significant likelihood
of having their computer systems compromised. Defenders face
particular challenges in scaling remediation across an entire
enterprise, and prioritizing actions with conflicting priorities,
and sometimes-uncertain side effects.\115\
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\115\ Council on Cybersecurity, CSC 4, Continuous Vulnerability
Assessment and Remediation: Why Is This Control Critical? (emphasis
added), available at http://www.counciloncybersecurity.org/critical-controls/.
Vulnerability testing is essential to cyber resilience.\116\ CFTC
Roundtable participants noted that for a financial sector institution,
vulnerability testing will scan and assess the security controls of the
entity's automated systems, on an ongoing basis, to ensure that they
are in place and operating properly.\117\ In the automated system
context, such testing will include ongoing review that includes
automated scanning, to ensure that timely software updates and patches
have been made for operating systems and applications, that network
components are configured properly, and that no known vulnerabilities
are present in operating systems and application software.\118\
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\116\ CFTC Roundtable, at 95-96.
\117\ Id.
\118\ Id.
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b. Best Practices Call for Vulnerability Testing
Conducting ongoing vulnerability testing, including automated
scanning, is a best practice with respect to cybersecurity. NIST
standards call for organizations to scan for automated system
vulnerabilities both on a regular and ongoing basis and when new
vulnerabilities potentially affecting their systems are identified and
reported.\119\ NIST adds that organizations should employ vulnerability
scanning tools and techniques that automate parts of the vulnerability
management process, with respect to enumerating platforms, software
flaws, and improper configurations; formatting checklists and test
procedures, and measuring vulnerability impacts.\120\ NIST states that
vulnerability scans should address, for example: Patch levels;
functions, ports, protocols, and services that should not be accessible
to users or devices; and improperly configured or incorrectly operating
information flow controls.\121\ NIST also calls for the organization to
remediate vulnerabilities identified by vulnerability testing, in
accordance with its assessments of risk.\122\
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\119\ NIST SP 800-53 Rev. 4, control RA-5 Vulnerability
Scanning, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\120\ Id.
\121\ Id.
\122\ Id.
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The Council on CyberSecurity's Critical Security Controls call for
organizations to ``continuously acquire, assess, and take action on new
information in order to identify vulnerabilities, remediate, and
minimize the window of opportunity for attackers.'' \123\ The Council
states that organizations should use vulnerability scanning tools that
look for both code-based and configuration-based vulnerabilities, run
automated vulnerability scans against all systems on the network at a
minimum on a weekly basis, and deliver to management prioritized lists
of the most critical vulnerabilities found.\124\
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\123\ Council on Cybersecurity, CSC 4, Continuous Vulnerability
Assessment and Remediation, available at http://www.counciloncybersecurity.org/critical-controls/.
\124\ Id. at CSC 4-1.
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The Data Security Standards (``DSS'') of the Payment Card Industry
(``PCI'') Security Standards Council note that ``[v]ulnerabilities are
being discovered continually by malicious individuals and researchers,
and being introduced by new software,'' and accordingly provide that
``[s]ystem components, processes, and custom software should be tested
frequently to ensure security controls continue to reflect a changing
environment.'' \125\ These standards call for running internal and
external network vulnerability scans both regularly and after any
significant change in the network.\126\
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\125\ Security Standards Council, Payment Card Industry Data
Security Standards (v.3.1, 2015) (``PCI DSS''), Requirement 11:
Regularly test security systems and processes, available at https://www.pcisecuritystandards.org/security_standards/index.php.
\126\ Id., Requirement 11.2.
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c. Proposed Vulnerability Testing Definitions and Related Provisions
The Commission is proposing to clarify the existing testing
requirements for all DCMs, all SEFs, and all SDRs by specifying
vulnerability testing as an essential means of fulfilling those
requirements, and defining it as testing of a DCM's, SEF's, or SDR's
automated systems to determine what information may be discoverable
through a reconnaissance analysis of those systems and what
vulnerabilities may be present on those systems. This definition is
consistent with NIST standards for such testing.\127\ For purposes of
this definition, the term ``reconnaissance analysis'' is used to
combine various aspects of vulnerability testing.\128\ The proposed
definition deliberately refers broadly to vulnerability testing in
order to avoid prescribing use of any particular technology or tools,
because vulnerability assessments may not always be automated, and
technology may change.\129\
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\127\ See NIST SP 800-53 Rev. 4, control RA-5, available at
http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\128\ See, e.g., NIST SP 800-115, Technical Guide to Information
Security Testing and Assessment (2008) (``NIST 800-115''), at 2-4,
available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf, noting that ``[e]xternal testing often begins with
reconnaissance techniques that search public registration data,
Domain Name System (DNS) server information, newsgroup postings, and
other publicly available information to collect information (e.g.,
system names, Internet Protocol [IP] addresses, operating systems,
technical points of contact) that may help the assessor to identify
vulnerabilities.''
\129\ See, e.g., SANS Institute, Penetration Testing: Assessing
Your Overall Security Before Attackers Do (June 2006), at 7,
available at https://www.sans.org/reading-room/whitepapers/analyst/penetration-testing-assessing-security-attackers-34635, noting: ``A
wide variety of tools may be used in penetration testing. These
tools are of two main types; reconnaissance or vulnerability testing
tools and exploitation tools. While penetration testing is more
directly tied to the exploitation tools, the initial scanning and
reconnaissance is often done using less intrusive tools.''
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The proposed rule would require that vulnerability testing include
automated vulnerability scanning, as well as an analysis of the test
results to identify and prioritize all vulnerabilities that require
remediation.\130\ Best practices
[[Page 80150]]
note that in most situations, vulnerability monitoring is most
efficient and cost-effective when automation is used.\131\ Participants
in the CFTC Roundtable agreed that automated vulnerability scanning
provides important benefits.\132\ Where indicated by appropriate risk
analysis, automated scanning would be required to be conducted on an
authenticated basis (i.e., using log-in credentials).\133\ Where
automated scans are unauthenticated (i.e., conducted without using
usernames or passwords), effective compensating controls would be
required.\134\
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\130\ See, PCI DSS, at 94, available at https://www.pcisecuritystandards.org/security_standards/index.php, defining
a vulnerability scan as ``a combination of automated or manual
tools, techniques, and/or methods run against external and internal
network devices and servers, designed to expose potential
vulnerabilities that could be found and exploited by malicious
individuals.'' See also NIST SP 800-115, supra note 111, available
at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf;
noting that testing techniques that include vulnerability scanning
``. . . can identify systems, ports, services, and potential
vulnerabilities, and may be performed manually but are generally
performed using automated tools.''
\131\ NIST SP 800-39, at 47-48, available at http://csrc.nist.gov/publications/nistpubs/800-39/SP800-39-final.pdf.
\132\ CFTC Roundtable, at 170-171.
\133\ The PCI Monitor, published by the PCI Security Standards
Council, explains the differences between unauthenticated and
authenticated vulnerability scanning, and the benefits of each type,
as follows: [U]nauthenticated web application scan tests are
conducted with no usernames and/or passwords as part of the test.
Authenticated web application scan tests use usernames and passwords
to simulate user activity on the Web site or system being tested.
Essentially, unauthenticated scan testing is ``logged-out testing''
and authenticated scanning is ``logged-in testing.'' . . .
Unauthenticated scan testing is typically much easier than
authenticated testing; it can be performed with basic tools and
doesn't require a great deal of technical expertise or understanding
of the systems, Web pages or workflows being tested. Unauthenticated
tests are also much quicker and can be effective in detecting
recognizable vulnerabilities without investing a great deal of time
and resources. However, unauthenticated testing alone is not an
effective method of simulating targeted attacks. The results may be
limited, producing a false sense of assurance that the systems have
been thoroughly assessed. . . . [A]uthenticated testing is more
thorough since user interaction and functionality . . . can be more
accurately simulated. Performing authenticated testing does require
a broader and deeper skill set and should only be performed by
qualified, experienced professionals. . . . Additionally, since
authenticated testing often includes manual techniques, the amount
of time required to perform such tests can increase significantly. .
. . As a general guideline, if the desire is to simulate what users
on the system are able to do, then authenticated testing is the most
effective approach. If the intent is to quickly identify the highest
risks that any user or tool could exploit, then unauthenticated
testing may suffice. Once the unauthenticated vulnerabilities are
identified and remediated, then authenticated testing should be
considered to achieve a more comprehensive assessment.
PCI Monitor, Vol. 2, Issue 26 (June 25, 2014), available at
http://training.pcisecuritystandards.org/the-pci-monitor-weekly-news-updates-and-insights-from-pci-ssc2?ecid=ACsprvuuirRbrU3vDlk76s_ngGKJKEYlvaBJzvvUMldZv4KKh6V1guIKOR5VLTNfAqPQ_Gmox3zO&utm_campaign=Monitor&utm_source=hs_email&utm_medium=email&utm_content=13292865&_hsenc=p2ANqtz_LIkkHURyUmyq1p2OxB39R5nOpRh1XHE_jW6wCC6EEUAow15E7AuExcIGwdYxyh_6YNxVvKorcurk6r90E3d7dG71fbw&_hsmi=13292865%20-%20web.
\134\ See PCI DSS, supra note 125, App. B at 112, available at
https://www.pcisecuritystandards.org/security_standards/index.php:
``Compensating controls may be considered . . . when an entity
cannot meet a requirement explicitly as stated, due to legitimate
technical or documented business constraints, but has sufficiently
mitigated the risk associated with the requirement through
implementation of other, or compensating, controls.''
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The proposed rule would require all DCMs, SEFs, and SDRs to conduct
vulnerability testing at a frequency determined by an appropriate risk
analysis. Testing as often as indicated by appropriate risk analysis is
a best practice. For example, the FFIEC states that ``[t]he frequency
of testing should be determined by the institution's risk assessment.''
\135\ Best practices call for risk assessments to include consideration
of a number of important factors in this regard, including, for
example, the frequency and extent of changes in the organization's
automated systems and operating environment; the potential impact if
risks revealed by testing are not addressed appropriately; the degree
to which the relevant threat environment or potential attacker profiles
and techniques are changing; and the results of other testing.\136\
Frequency appropriate to risk analysis can also vary depending on the
type of monitoring involved; for example, with whether automated
monitoring or procedural testing is being conducted.\137\
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\135\ FFIEC, Information Security IT Examination Handbook, at
82, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\136\ See NIST SP 800-39, at 47-48, available at http://csrc.nist.gov/publications/nistpubs/800-39/SP800-39-final.pdf;
FFIEC, Information Security IT Examination Handbook, at 82,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\137\ Id.
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d. Minimum Vulnerability Testing Frequency Requirements for Covered
DCMs and SDRs
The proposed rule would require covered DCMs and SDRs to conduct
vulnerability testing no less frequently than quarterly. Best practices
support this requirement. For example, PCI DSS standards provide that
entities should run internal and external network vulnerability scans
``at least quarterly,'' as well as after any significant network
changes, new system component installations, firewall modifications, or
product upgrades.\138\ The Council on CyberSecurity calls for entities
to ``continuously acquire, assess, and take action on new information
in order to identify vulnerabilities.'' \139\ In light of these best
practices and the current level of cyber threat to the financial sector
discussed above, the Commission believes that the proposed rule
provisions regarding vulnerability testing frequency are appropriate in
today's cybersecurity environment.\140\
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\138\ PCI DSS, Requirement 11.2, available at https://www.pcisecuritystandards.org/security_standards/index.php.
\139\ Council on CyberSecurity, CSC 4, Continuous Vulnerability
Assessment and Remediation, available at http://www.counciloncybersecurity.org/critical-controls/.
\140\ The Commission understands that most covered DCMs and SDRs
currently conduct vulnerability testing on at least a quarterly
basis and in many cases on a continuous basis.
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e. Independent Contractor Vulnerability Testing Requirements for
Covered DCMs and All SDRs
The proposed rule would require covered DCMs and SDRs to engage
independent contractors to conduct two of the required quarterly
vulnerability tests each year, while permitting covered DCMs and SDRs
to conduct other vulnerability testing using employees not responsible
for development or operation of the systems or capabilities being
tested.
Participants in the CFTC Roundtable agreed that important benefits
are provided when a testing program includes both testing by
independent contractors and testing by entity employees not responsible
for building or operating the system being tested. As one participant
noted, ``[t]here are advantages to both, but neither can stand alone.''
\141\ Much testing needs to happen internally, but much also needs to
be conducted from the viewpoint of an outsider, particularly where
testing against the possible tactics or techniques of a particular
threat actor is concerned.\142\ Third-party vendors offer specialized
expertise concerning the latest threat intelligence, the latest attack
vectors against the financial sector, and the recent experience of
other entities with similar systems and similar vulnerabilities.\143\
One benefit offered by testing conducted by entity employees is that
internal vulnerability testing and scanning can utilize viewpoints that
the outside world would not have, based on intimate knowledge of the
entity's network and systems.\144\ Conversely, an additional benefit
provided by independent contractor testing comes from the outsider's
different perspective, and his or her ability to look for things that
entity employees may not have contemplated during the design or
[[Page 80151]]
operation of the system involved.\145\ One Roundtable participant
observed that the vulnerability assessments which are the goal of
vulnerability testing done by entity employees need to themselves be
tested and validated by independent, external parties.\146\ In short,
an overall testing program that includes both testing by independent
contractors and testing by entity employee can offer complementary
benefits.
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\141\ CFTC Roundtable, at 88.
\142\ Id. at 88-89.
\143\ Id. at 103-104.
\144\ Id. at 177.
\145\ Id. at 171.
\146\ Id.
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Regarding the benefits provided by independent contractor testing,
NIST notes that:
[E]ngaging third parties (e.g., auditors, contractor support
staff) to conduct the assessment offers an independent view and
approach that internal assessors may not be able to provide.
Organizations may also use third parties to provide specific subject
matter expertise that is not available internally.\147\
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\147\ NIST SP 800-115, at 6-6, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf. NIST also
notes that giving outsiders access to an organization's systems can
introduce additional risk, and recommends proper vetting and
attention to contractual responsibility in this regard.
FFIEC states that testing by independent contractors provides
credibility to test results.\148\ Where testing is conducted by entity
employees, FFIEC calls for tests performed ``by individuals who are
also independent of the design, installation, maintenance, and
operation of the tested system.'' \149\ In its COBIT 5 framework, ISACA
states that those performing system safeguards testing and assurance
should be independent from the functions, groups, or organizational
components being tested.\150\ With respect to system safeguards testing
by internal auditors, FFIEC states that the auditors should have both
independence and authority from the Board of Directors to access all
records and staff necessary for their audits.\151\ It also states that
they should not participate in activities that may compromise or appear
to compromise their independence, such as preparing or developing the
types of reports, procedures, or operational duties normally reviewed
by auditors.\152\ The data security standards of the Payment Card
Industry Security Standards Council call for conducting both internal
and external vulnerability scans, with external scans performed by an
approved vendor.\153\
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\148\ FFIEC, Information Security IT Examination Handbook, at
81, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\149\ Id.
\150\ ISACA, COBIT 5, Monitor, Evaluate and Assess (``MEA'')
MEA02.05, Ensure that assurance providers are independent and
qualified, available at https://cobitonline.isaca.org.
\151\ Id. at 6.
\152\ Id.
\153\ PCI DSS, Requirement 11, Regularly test security systems
and processes, at 94-96, available at https://www.pcisecuritystandards.org/security_standards/index.php.
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Current Commission system safeguards rules leave to a DCM or SDR
the choice of whether vulnerability testing or other system safeguards
testing is conducted by independent contractors or entity employees not
responsible for building or operating the systems being tested. The
proposed requirement for some vulnerability testing to be performed by
independent contractors is intended to ensure that covered DCM and SDR
programs of risk analysis and oversight with respect to system
safeguards include the benefits coming from a combination of testing by
both entity employees and independent contractors, as discussed above.
In light of the best practices and the current level of cyber threat to
the financial sector discussed above, the Commission believes that the
proposed rule provisions regarding vulnerability testing by independent
contractors are appropriate in today's cybersecurity environment.
4. Penetration Testing
a. Need for Penetration Testing
Penetration testing to exploit cyber and automated system
vulnerabilities, a testing type which complements vulnerability
testing, is also a significant component of a DCM's, SEF's, or SDR's
program of risk analysis and oversight to identify and minimize sources
of operational risk. Penetration tests go beyond the uncovering of an
organization's automated system vulnerabilities that vulnerability
testing aims to achieve: They subject the system to real-world attacks
by testing personnel, in order to identify both the extent to which an
attacker could compromise the system before the organization detects
and counters the attack, and the effectiveness of the organization's
response mechanisms.\154\ NIST defines penetration testing as ``[a]
test methodology in which assessors, typically working under specific
constraints, attempt to circumvent or defeat the security features of
an information system.'' \155\ NIST describes the benefits of
penetration testing as follows:
---------------------------------------------------------------------------
\154\ See FFIEC, Information Security IT Examination Handbook,
at 81, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\155\ NIST SP 800-53 Rev. 4, App. B at B-17, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
Penetration testing is a specialized type of assessment
conducted on information systems or individual system components to
identify vulnerabilities that could be exploited by adversaries.
Such testing can be used to either validate vulnerabilities or
determine the degree of resistance organizational information
systems have to adversaries within a set of specified constraints
(e.g., time, resources, and/or skills). Penetration testing attempts
to duplicate the actions of adversaries in carrying out hostile
cyber attacks against organizations and provides a more in-depth
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analysis of security-related weaknesses/deficiencies.\156\
\156\ Id. at F-62, CA-8 Penetration Testing.
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The Council on CyberSecurity explains the need for penetration
testing as follows:
Attackers often exploit the gap between good defensive designs
and intentions and implementation or maintenance. . . . In addition,
successful defense requires a comprehensive program of technical
defenses, good policy and governance, and appropriate action by
people. In a complex environment where technology is constantly
evolving, and new attacker tradecraft appears regularly,
organizations should periodically test their defenses to identify
gaps and to assess their readiness.
Penetration testing starts from the identification and
assessment of vulnerabilities that can be identified in the
enterprise. It complements this by designing and executing tests
that demonstrate specifically how an adversary can either subvert
the organization's security goals (e.g., the protection of specific
Intellectual Property) or achieve specific adversarial objectives
(e.g., establishment of a covert Command and Control
infrastructure). The result provides deeper insight, through
demonstration, into the business risks of various vulnerabilities.
[Penetration testing] exercises take a comprehensive approach at
the full spectrum of organization policies, processes, and defenses
in order to improve organizational readiness, improve training for
defensive practitioners, and inspect current performance levels.
Independent Red Teams can provide valuable and objective insights
about the existence of vulnerabilities and the efficacy of defenses
and mitigating controls already in place and even of those planned
for future implementation.\157\
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\157\ Council on Cybersecurity, CSC 20, Penetration Tests and
Red Team Exercises: Why Is This Control Critical? available at
http://www.counciloncybersecurity.org/critical-controls/.
Anecdotally, one CFTC Roundtable participant characterized the need
for penetration testing by stating that, ``you will never know how
strong your security is until you try to break it yourself and try to
bypass it,'' adding that ``if you're not testing to see how strong it
is, I guarantee you, somebody
[[Page 80152]]
else is.'' \158\ Another Roundtable participant described the essential
function of penetration testing as intruding into a network as
stealthily as possible, mimicking the methodologies used by attackers,
seeing whether and at what point the entity can detect the intrusion,
and identifying gaps between the entity's current defenses and attacker
capabilities, with the goal of reducing the time needed to detect an
intrusion from multiple days to milliseconds, and closing the gaps
between attacker and defender capabilities.\159\
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\158\ Id. at 96.
\159\ Id. at 58-60.
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b. Best Practices Call for Both External and Internal Penetration
Testing
Best practices and standards provide that organizations should
conduct two types of penetration testing: External and internal. Many
best practices sources also describe the benefits of both types of
penetration testing. The Council on CyberSecurity states that
organizations should:
Conduct regular external and internal penetration tests to
identify vulnerabilities and attack vectors that can be used to
exploit enterprise systems successfully. Penetration testing should
occur from outside the network perimeter (i.e., the Internet or
wireless frequencies around an organization) as well as from within
its boundaries (i.e., on the internal network) to simulate both
outsider and insider attacks.\160\
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\160\ Council on CyberSecurity, CSC 20-1, available at http://www.counciloncybersecurity.org/critical-controls/.
FINRA's recent Report on Cybersecurity Practices provides a useful
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description of the benefits of penetration testing:
Penetration Testing (also known as ``Pen Testing'') is an
effective practice that simulates a real-world attack against a
firm's computer systems. The goal of a third-party penetration test
is to get an attacker's perspective on security weaknesses that a
firm's technology systems may exhibit.
Penetration Tests are valuable for several reasons:
Determining the feasibility of a particular set of
attack vectors;
identifying higher-risk vulnerabilities that result
from a combination of lower-risk vulnerabilities exploited in a
particular sequence;
identifying vulnerabilities that may be difficult or
impossible to detect with automated network or application
vulnerability scanning software;
assessing the magnitude of potential business and
operational impacts of successful attacks;
testing the ability of network defenders to
successfully detect and respond to the attack; and
providing evidence to support increased investments in
security personnel and technology.
Penetration Tests can take different forms depending on a firm's
specific objectives for the test. Each of these contributes in its
own way to an overall defense-in-depth strategy.\161\
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\161\ FINRA, Report on Cybersecurity Practices (February 2015),
at 22, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
FINRA also describes the different benefits of external and
---------------------------------------------------------------------------
internal penetration testing, and emphasizes the need for both types:
External penetration testing is designed to test a firm's
systems as they are exposed to the outside world (typically via the
Internet), while internal penetration testing is designed to test a
firm's systems' resilience to the insider threat. An advanced
persistent attack may involve an outsider gaining a progressively
greater foothold in a firm's environment, effectively becoming an
insider in the process. For this reason, it is important to perform
penetration testing against both external and internal interfaces
and systems.\162\
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\162\ Id.
NIST standards for system safeguards call for organizations to
conduct penetration testing, and reference both external and internal
testing.\163\ NIST describes the benefits of external penetration tests
as follows:
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\163\ NIST SP 800-53 Rev. 4, control CA-8 Penetration Testing,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
External security testing is conducted from outside the
organization's security perimeter. This offers the ability to view
the environment's security posture as it appears outside the
security perimeter--usually as seen from the Internet--with the goal
of revealing vulnerabilities that could be exploited by an external
attacker.\164\
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\164\ NIST SP 800-115, at 2-4 to 2-5, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
NIST notes that internal penetration tests offer different
---------------------------------------------------------------------------
benefits, as follows:
For internal security testing, assessors work from the internal
network and assume the identity of a trusted insider or an attacker
who has penetrated the perimeter defenses. This kind of testing can
reveal vulnerabilities that could be exploited, and demonstrates the
potential damage this type of attacker could cause. Internal
security testing also focuses on system-level security and
configuration--including application and service configuration,
authentication, access control, and system hardening.\165\
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\165\ Id. See also, e.g., System Administration, Networking, and
Security Institute (``SANS''), Penetration Testing in the Financial
Services Industry (2010), at 17, available at https://www.sans.org/reading-room/whitepapers/testing/penetration-testing-financial-services-industry-33314 (``Penetration testing is essential given
the context of high operational risk in the financial services
industry.'')
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c. Proposed Penetration Testing Definitions and Related Provisions
The Commission is proposing to clarify the existing testing
requirements for all DCMs, all SEFs, and all SDRs by specifying both
external and internal penetration testing as essential to fulfilling
those requirements, and defining both. External penetration testing
would be defined as attempts to penetrate a DCM's, SEF's, or SDR's
automated systems or networks from outside their boundaries to identify
and exploit vulnerabilities (including, but not limited to, methods for
circumventing the security features of an application, system, or
network). Internal penetration testing would be defined as attempts to
penetrate a DCM's, SEF's, or SDR's automated systems or networks from
inside their boundaries to identify and exploit vulnerabilities
(including, but not limited to, methods for circumventing the security
features of an application, system, or network). These definitions are
consistent with the standards and best practices discussed above. In
light of the best practices, and the external and internal penetration
testing benefits noted above, the Commission believes that such testing
is important in the context of today's cybersecurity threat
environment.
The proposed rule would require all DCMs, SEFs, and SDRs to conduct
both external and internal penetration testing at a frequency
determined by an appropriate risk analysis. As discussed above, testing
as often as indicated by appropriate risk analysis is a best
practice.\166\
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\166\ See discussion above concerning vulnerability testing.
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d. Minimum Penetration Testing Frequency Requirements for Covered Dcms
and Sdrs
The proposed rule would require covered DCMs and SDRs to conduct
both external and internal penetration testing no less frequently than
annually.\167\ Best practices support this
[[Page 80153]]
requirement.\168\ NIST calls for at least annual penetration testing of
an organization's network and systems.\169\ The FFIEC calls for
independent penetration testing of high risk systems at least annually,
and for quarterly testing and verification of the efficacy of firewall
and access control defenses.\170\ Data security standards for the
payment card industry provide that entities should perform both
external and internal penetration testing ``at least annually,'' as
well as after any significant network changes, new system component
installations, firewall modifications, or product upgrades.\171\
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\167\ The SEC's Regulation System Compliance and Integrity
(``Regulation SCI''), issued in final form in December 2014, also
requires penetration testing by SCI entities, defined as including,
among other things, national securities exchanges, alternative
trading systems, and registered clearing agencies. It requires each
SCI entity to conduct SCI reviews that include penetration testing
at least every three years. The Commission's proposed rule would
require covered DCMs and SDRs to conduct penetration testing at a
frequency determined by an appropriate risk analysis, but no less
frequently than annually. In light of the multiple best practices
cited above, and the importance of covered DCMs and SDRs to the
national economy, the Commission believes that conducting
penetration testing at least annually is appropriate.
\168\ The Commission understands that most covered DCMs (as
defined) and most SDRs currently conduct external and internal
penetration testing at least annually.
\169\ NIST, SP 800-115, Technical Guide to Information Security
Testing and Assessment, Section 5.2.2, at 5-5, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
\170\ FFIEC, Information Security IT Examination Handbook, at
82, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\171\ PCI DSS, Requirements 11.3.1 and 11.3.2. available at
https://www.pcisecuritystandards.org/documents/PCI_DSS_v3-1.pdf.
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e. Independent Contractor Penetration Testing Requirements for Covered
DCMS and All SDRS
The proposed rule would require covered DCMs and SDRs to engage
independent contractors to conduct the required minimum of an annual
external penetration test. It would allow covered DCMs and SDRs to have
internal penetration testing, and any additional external penetration
testing needed in light of appropriate risk analysis, conducted either
by independent contractors or by entity employees who are not
responsible for development or operation of the systems or capabilities
being tested.
As noted above, best practices support having some testing
conducted by independent contractors.\172\ NIST notes that:
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\172\ See discussion above concerning vulnerability testing.
[E]ngaging third parties (e.g., auditors, contractor support
staff) to conduct the assessment offers an independent view and
approach that internal assessors may not be able to provide.
Organizations may also use third parties to provide specific subject
matter expertise that is not available internally.\173\
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\173\ NIST SP 800-115, at 6-6, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf. NIST also
notes that giving outsiders access to an organization's systems can
introduce additional risk, and recommends proper vetting and
attention to contractual responsibility in this regard.
The data security standards of the Payment Card Industry Security
Standards Council call for external testing to be performed by an
approved vendor.\174\ Participants in the CFTC Roundtable agreed that
important benefits are provided when a testing program includes testing
by independent contractors, noting that vendor testing has particular
value with respect to what external penetration does, namely test from
the viewpoint of an outsider and against the current tactics,
techniques, and threat vectors of current threat actors as revealed by
current threat intelligence.\175\
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\174\ PCI DSS, Requirement 11, Regularly test security systems
and processes, at 94-96, available at https://www.pcisecuritystandards.org/security_standards/index.php.
\175\ CFTC Roundtable, at 88-89, 103-104, 171.
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Current Commission system safeguards rules leave to a DCM or SDR
the choice of whether penetration testing or other system safeguards
testing is conducted by independent contractors or entity employees not
responsible for building or operation of the systems being tested. The
proposed requirement for the required minimum annual external
penetration testing to be performed by independent contractors is
intended to ensure that covered DCM and SDR programs of risk analysis
and oversight with respect to system safeguards include the benefits
provided when independent contractors perform such testing. In light of
the best practices and the current level of cyber threat to the
financial sector discussed above, the Commission believes that the
proposed rule provisions regarding external penetration testing by
independent contractors are appropriate in today's cybersecurity
environment.\176\
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\176\ The Commission understands that most DCMs that would be
covered by the proposed covered DCM definition, and most SDRs,
currently have external penetration testing conducted by independent
contractors at least annually.
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5. Controls Testing
a. Need for Controls Testing
As defined in the proposed rule, controls are the safeguards or
countermeasures used by a DCM, SEF, or SDR to protect the reliability,
security, or capacity of its automated systems or the confidentiality,
integrity, and availability of its data and information, so as to
fulfill its statutory and regulatory responsibilities. Controls testing
is defined as assessment of all of the DCM's, SEF's, or SDR's system
safeguards-related controls, to determine whether they are implemented
correctly, are operating as intended, and are enabling the organization
to meet system safeguards requirements. Regular, ongoing testing of all
of an organization's system safeguards-related controls for these
purposes is a crucial part of the program of risk analysis and
oversight required of all DCMs, SEFs, and SDRs by the Act and
Commission regulations.\177\ As noted in NIST's standards and best
practices, there are three broad types of system safeguards-related
controls, including technical controls, operational controls, and
management controls.\178\ Some controls provide safeguards against
automated system failures or deficiencies, while others guard against
human error, deficiencies, or malicious action. Controls testing as
addressed by the proposed rule includes all of these types of system
safeguards controls.
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\177\ 17 CFR 38.1050(a) (for DCMs); 17 CFR 37.1400(a) (for
SEFs); 17 CFR 49.24(a)(1) (for SDRs).
\178\ NIST SP 800-53 Rev. 4, at F-3, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
See also CFTC Roundtable, at 194-196.
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Describing some of the important benefits of controls assessment,
NIST notes that ``[u]nderstanding the overall effectiveness of
implemented security and privacy controls is essential in determining
the risk to the organization's operations and assets . . . resulting
from the use of the system,''\179\ and observes that controls
assessment ``is the principal vehicle used to verify that implemented
security controls . . . are meeting their stated goals and
objectives.'' \180\ NIST adds that:
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\179\ NIST SP 800-53A Rev. 4, Assessing Security and Privacy
Controls to Federal Information Systems and Organizations (``NIST SP
800-53A Rev. 4''), at 1, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
\180\ Id. at xi (Foreword).
Security assessments: (i) Ensure that information security is
built into organizational information systems; (ii) identify
weaknesses and deficiencies early in the development process; (iii)
provide essential information needed to make risk-based decisions as
part of security authorization processes; and (iv) ensure compliance
to vulnerability mitigation procedures.\181\
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\181\ NIST SP 800-53 Rev. 4, control CA-2 Security Assessments,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
The Commission believes that in today's rapidly-changing cybersecurity
threat environment, regular, ongoing controls testing that verifies
over time the effectiveness of each system safeguards control used by a
DCM, SEF, or SDR is essential to ensuring the continuing overall
efficacy of the entity's system safeguards and of its program of risk
analysis and oversight.
[[Page 80154]]
b. Best Practices Call for Controls Testing
Best practices and standards call for organizations to conduct
regular, ongoing controls testing that over time includes testing of
all their system safeguards-related controls. NIST calls for
organizations to have a security assessment plan that:
Assesses the security controls in the information system and its
environment of operation to determine the extent to which the
controls are implemented correctly, operating as intended, and
producing the desired outcome with respect to meeting established
security requirements.\182\
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\182\ Id.
NIST notes that the results of such testing can allow organizations,
among other things to identify potential cybersecurity problems or
shortfalls, identify security-related weaknesses and deficiencies,
prioritize risk mitigation decisions and activities, confirm that
weaknesses and deficiencies have been addressed, and inform related
budgetary decisions and capital investment.\183\ FFIEC calls for
controls testing because ``[c]ontrols should not be assumed to be
completely effective,'' and states that a controls testing program ``is
sound industry practice and should be based on an assessment of the
risk of non-compliance or circumvention of the institution's
controls.'' \184\ ISACA's COBIT standards call for organizations to
``[c]ontinuously monitor and evaluate the control environment,
including self-assessments and independent assurance reviews,'' \185\
and to ``[r]eview the operation of controls . . . to ensure that
controls within business process operate effectively.'' \186\ ISACA
observes that this enables management ``to identify control
deficiencies and inefficiencies and to initiate improvement actions.''
\187\
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\183\ NIST SP 800-53A Rev. 4, at 3, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
\184\ FFIEC, Information Security IT Examination Handbook,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\185\ ISACA, COBIT 5, MEA02 Evaluate and Assess the System of
Internal Control, available at https://cobitonline.isaca.org/.
\186\ Id., Section 02.02 Review Business Process Controls
Effectiveness.
\187\ Id., Section 02.
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c. Controls Testing Definitions and Related Provisions
In this NPRM, the Commission is proposing to clarify the existing
testing requirements for all DCMs, SEFs, and SDRs by specifying
controls testing as essential to fulfilling those requirements, and
defining it. The proposed rule's definitions of controls and controls
testing are discussed above.\188\ The proposed rule also defines ``key
controls'' as those controls that an appropriate risk analysis
determines are either critically important for effective system
safeguards, or intended to address risks that evolve or change more
frequently and therefore require more frequent review to ensure their
continuing effectiveness in addressing such risks.
---------------------------------------------------------------------------
\188\ See discussion above concerning the need for controls
testing.
---------------------------------------------------------------------------
The proposed rule would require each DCM, SEF, and SDR to conduct
controls testing, including testing of each control included in its
program of system safeguards-related risk analysis and oversight, at a
frequency determined by an appropriate risk analysis. As discussed
above, testing at such a frequency is a best practice.\189\
---------------------------------------------------------------------------
\189\ See discussion above concerning vulnerability testing.
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d. Minimum Controls Testing Frequency Requirements for Covered DCMs and
SDRs
The proposed rule would call for a covered DCM or an SDR to conduct
controls testing, including testing of each control included in its
program of system safeguards-related risk analysis and oversight, no
less frequently than every two years. It would permit such testing to
be conducted on a rolling basis over the course of the two-year period
or the period determined by appropriate risk analysis, whichever is
shorter.\190\
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\190\ The Commission understands that the proposed rule could
result in some additional controls testing costs for some covered
DCMs or SDRs, because they are not currently conducting testing of
all their system safeguards controls at the minimum frequency
required by the proposed rule. In such cases, the covered DCM or SDR
would need to accelerate the testing of some controls to comply with
the two-year minimum frequency requirement.
---------------------------------------------------------------------------
The proposed rule includes this frequency provision in order to
ensure that in all cases, each control included in the system
safeguards risk analysis and oversight program of a covered DCM or an
SDR is tested at least every two years, or tested more frequently if
that is indicated by appropriate analysis of the entity's system
safeguards-related risks. The Commission believes that it is essential
for each control to be tested at least this often in order to confirm
the continuing adequacy of the entity's system safeguards in today's
cybersecurity threat environment. The Commission also recognizes that
appropriate risk analysis may well determine that more frequent testing
of either certain key controls or all controls is necessary.
The provision permitting such testing to be done on a rolling basis
is included in recognition of the fact that an adequate system
safeguards program for a covered DCM or an SDR must necessarily include
large numbers of controls of all the various types discussed above, and
that therefore it could be impracticable and unduly burdensome to
require testing of all controls in a single test. The rolling basis
provision is designed to give flexibility to a covered DCM or an SDR
concerning which controls are tested when during the applicable minimum
period--either every two years or more often if called for by
appropriate risk analysis--as long as each control is tested within the
applicable minimum period. This flexibility is intended to reduce
burdens associated with testing every control to the extent possible
while still ensuring the needed minimum testing frequency. Testing on a
rolling or recursive basis is also congruent with best practices. NIST
states that a controls test can consist of either complete assessment
of all controls or a partial assessment of controls selected for a
particular assessment purpose.\191\ NIST notes that over time,
organizations can increase cybersecurity situational awareness through
appropriate testing, which provides increased insight into and control
of the processes used to manage the organization's security, which in
turn enhances situational awareness, in a recursive process.\192\
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\191\ NIST SP 800-53A Rev. 4, at 17-18, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
\192\ NIST SP-800-137, Information Security Continuous
Monitoring (ISCM) for Federal Information Systems and Organizations,
at 6, available at http://csrc.nist.gov/publications/nistpubs/800-137/SP800-137-Final.pdf.
---------------------------------------------------------------------------
e. Independent Contractor Controls Testing Requirements for Covered
DCMs and SDRs
The proposed rule would require covered DCMs and SDRs to engage
independent contractors to test and assess each of the entity's key
controls no less frequently than every two years.\193\ It permits the
covered DCM or SDR to conduct any other required controls testing by
using either independent contractors or entity employees not
responsible for development or operation of the systems of capabilities
involved in the test. Independent testing of key controls is consonant
with best practices. ISACA
[[Page 80155]]
standards call for controls testing to include independent assurance
reviews as well as self-assessments, in order to assure control
effectiveness.\194\ NIST calls for controls testing to include
assessment by independent assessors, free from actual or perceived
conflicts of interest, in order to validate the completeness, accuracy,
integrity, and reliability of test results.\195\ The proposed rule's
requirement for testing of key controls by independent contractors at
least every two years is designed to ensure that covered DCM and SDR
programs of risk analysis and oversight with respect to system
safeguards include these benefits with regard to the testing of their
key controls. In light of the best practices and the current level of
cyber threat to the financial sector discussed above, the Commission
believes that having each of a covered DCM's or SDR's key controls
tested by independent contractors at least every two years is
appropriate and important in today's cybersecurity environment. The
rolling basis provision of the proposed rule regarding controls testing
would leave to a covered DCM or SDR the choice of whether to have key
controls testing by independent contractors done in a single test at
least every two years, or in multiple, partial tests by independent
contractors that cover each key control within the two-year minimum
period.\196\
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\193\ The Commission understands that most DCMs that would be
covered by the proposed covered DCM definition, and most SDRs,
currently retain independent contractors to perform testing of their
key controls.
\194\ ISACA, COBIT 5, MEA02, Monitor, Evaluate and Assess the
System of Internal Control, available at https://cobitonline.isaca.org/.
\195\ NIST SP 800-53 Rev. 4, control CA-2 Security Assessments,
Control Enhancements 1, Security Assessments: Independent Assessors,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\196\ The requirements proposed by the Commission regarding
controls testing are generally consistent with the SEC's Regulation
SCI, issued in final form in December 2014. Regulation SCI applies
to SCI entities, defined as including, among other things, national
securities exchanges, alternative trading systems, and registered
clearing agencies. It requires each SCI entity to conduct SCI
reviews that include assessments of the design and effectiveness of
internal controls, in a manner consistent with industry standards.
SCI reviews must be conducted at least annually.
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6. Security Incident Response Plan Testing
a. Need for Security Incident Response Plans and Testing
Financial sector entities should maintain and test a security
incident \197\ response plan (``SIRP''). As the Council on
CyberSecurity explains in addressing its Critical Security Control
calling for incident response plans and testing:
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\197\ NIST defines a ``security incident'' as ``[a]n occurrence
that actually or potentially jeopardizes the confidentiality,
integrity, or availability of an information system or the
information the system processes, stores, or transmits, or that
constitutes a violation or imminent threat of violation of security
policies, security procedures, or acceptable use policies.'' NIST SP
800-53 Rev. 4, at B-9, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf. NIST further
defines a ``computer security incident'' as ``a violation or
imminent threat of violation of computer security policies,
acceptable use policies, or standard security practices.'' NIST SP
800-61 Rev. 2, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-61r2.pdf. The FFIEC defines a
``security incident'' as ``the attempted or successful unauthorized
access, use, modification, or destruction of information systems or
customer data. If unauthorized access occurs, the financial
institution's computer systems could potentially fail and
confidential information could be compromised.'' FFIEC IT
Examination Handbook, Business Continuity Planning IT Examination
Handbook, at 25, available at http://ithandbook.ffiec.gov/
ITBooklets/FFIEC_ITBooklet_BusinessContinuityPlanning.pdf.
Cyber incidents are now just part of our way of life. Even
large, well-funded, and technically sophisticated enterprises
struggle to keep up with the frequency and complexity of attacks.
The question of a successful cyber-attack against an enterprise is
not ``if'' but ``when''. When an incident occurs, it is too late to
develop the right procedures, reporting, data collection, management
responsibility, legal protocols, and communications strategy that
will allow the enterprise to successfully understand, manage, and
recover. Without an incident response plan, an organization may not
discover an attack in the first place, or, if the attack is
detected, the organization may not follow good procedures to contain
damage, eradicate the attacker's presence, and recover in a secure
fashion. Thus, the attacker may have a far greater impact, causing
more damage, infecting more systems, and possibly exfiltrate more
sensitive data than would otherwise be possible were an effective
incident response plan in place.\198\
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\198\ Council on CyberSecurity, The Critical Security Controls
for Effective Cyber Defense Version 5.1, CSC 18, at 96, available at
http://www.counciloncybersecurity.org/critical-controls/.
Adequate cyber resilience requires that organizations have the capacity
to detect, contain, eliminate, and recover from a cyber intrusion. The
Commission believes that SIRPs and their testing are essential to such
capabilities.
CFTC Roundtable participants recommended that the Commission
consider SIRP testing in addressing the various types of testing needed
in today's cyber threat environment.\199\ Panelists stated that testing
an organization's ability to recover from cyber attacks, in particular
from attacks aimed at destruction of data or automated systems or at
degradation of data integrity, is very important.\200\ They noted that
when a security incident actually happens, it is helpful to have an
incident response plan, but more helpful to have tested it. Panelists
explained if the organization has practiced its plan or framework for
responding to a security incident, the people who must make decisions--
often with incomplete or conflicting information--will know what
numbers to call, where to go, what is expected, and what the framework
is for making the quick decisions that are needed. They also noted that
failure to practice the response process can delay or paralyze timely
response and cause severe consequences, and that this makes practicing
an incident response plan or framework crucial to effective incident
response.\201\ Panelists also noted that much financial sector business
continuity testing has focused in the past on an entity's ability to
respond to physical security incidents such as storms, transportation
or electric power outages, fire, flood, etc. In addition to physical
security incident response testing, adequate testing today must take
into account the fact that the risk landscape has changed and now
includes increased cyber threat.\202\
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\199\ CFTC Roundtable, at 82-84.
\200\ Id. at 79-80.
\201\ Id. at 284-287.
\202\ Id. at 283-284, 290-294.
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b. Best Practices Call for Maintaining and Testing a SIRP
Having and testing a cyber and physical security incident response
plan is a best practice with regard to cybersecurity. NIST urges
organizations to have a cyber incident response plan that:
Establishes procedures to address cyber attacks against an
organization's information system(s). These procedures are designed
to enable security personnel to identify, mitigate, and recover from
malicious computer incidents, such as unauthorized access to a
system or data, denial of service, or unauthorized changes to system
hardware, software, or data (e.g., malicious logic, such as a virus,
worm, or Trojan horse).\203\
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\203\ NIST SP 800-34 Rev. 1, Contingency Planning Guide for
Federal Information Systems (``NIST SP 800-34 Rev. 1''), Sec. 2.2.5
Cyber Incident Response Plan, at 11, available at http://csrc.nist.gov/publications/nistpubs/800-34-rev1/sp800-34-rev1_errata-Nov11-2010.pdf.
NIST notes that such plans may be included as an appendix to the
organization's business continuity plan.\204\
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\204\ Id.
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NIST best practices for cybersecurity also call for organizations
to test their incident response capabilities with respect to their
information systems, at appropriate frequencies, to determine their
effectiveness, and to document test results.\205\ They provide that
organizations should:
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\205\ NIST SP 800-53 Rev. 4, control IR-3 Incident Response
Testing, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
[[Page 80156]]
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[H]ave information technology (IT) plans in place, such as
contingency and computer security incident response plans, so that
they can respond to and manage adverse situations involving IT.
These plans should be maintained in a state of readiness, which
should include having personnel trained to fulfill their roles and
responsibilities within a plan, having plans exercised to validate
their content, and having systems and system components tested to
ensure their operability in an operational environment specified in
a plan. These three types of events can be carried out efficiently
and effectively through the development and implementation of a
test, training, and exercise (TT&E) program. Organizations should
consider having such a program in place because tests, training, and
exercises are so closely related. For example, exercises and tests
offer different ways of identifying deficiencies in IT plans,
procedures, and training.\206\
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\206\ NIST SP 800-84, Guide to Test, Training, and Exercise
Programs for IT Plans and Capabilities (``NIST SP 800-84''), at ES-
1, available at http://csrc.nist.gov/publications/nistpubs/800-84/SP800-84.pdf.
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NIST adds that:
Organizations should conduct TT&E events periodically; following
organizational changes, updates to an IT plan, or the issuance of
new TT&E guidance; or as otherwise needed. This assists
organizations in ensuring that their IT plans are reasonable,
effective, and complete, and that all personnel know what their
roles are in the conduct of each IT plan. TT&E event schedules are
often dictated in part by organizational requirements. For example,
NIST Special Publication 800-53 requires Federal agencies to conduct
exercises or tests for their systems' contingency plans and incident
response capabilities at least annually.\207\
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\207\ Id. at ES-2.
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In addition, NIST states that an organization following best practices:
Coordinates contingency planning activities with incident
handling activities. By closely coordinating contingency planning
with incident handling activities, organizations can ensure that the
necessary contingency planning activities are in place and activated
in the event of a security incident.\208\
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\208\ NIST SP 800-53 Rev. 4, control CP-2 Contingency Plan,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-3r4.pdf.
According to NIST, an organization following best practices tests the
contingency plan for an information system at an appropriate frequency,
using organization-defined tests, to determine the effectiveness of the
plan and the organizational readiness to execute the plan. It then
reviews the test results, and initiates corrective actions if
needed.\209\
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\209\ NIST SP 800-53 Rev. 4, control CP-4 Contingency Plan
Testing, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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FINRA's best practices also call for SIRPs. FINRA's 2015 Report on
Cybersecurity Practices states that:
Firms should establish policies and procedures, as well as roles
and responsibilities for escalating and responding to cybersecurity
incidents. Effective practices for incident response include
involvement in industry-wide and firm-specific simulation exercises
as appropriate to the role and scale of a firm's business.\210\
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\210\ FINRA, Report on Cybersecurity Practices (February 2015),
at 23, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
The FFIEC has said that ``[e]very financial institution should
develop an incident response policy that is properly integrated into
the business continuity planning process.'' \211\ The FFIEC also calls
for incident response plan testing, stating that ``[f]inancial
institutions should assess the adequacy of their preparation by testing
incident response guidelines to ensure that the procedures correspond
with business continuity strategies.\212\
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\211\ FFIEC, Business Continuity Planning IT Examination
Handbook, at 25, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_BusinessContinuityPlanning.pdf.
\212\ Id. at 25-26.
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The Council on CyberSecurity's Critical Security Controls provide
that organizations should protect their information, as well as their
reputations, by developing and implementing an incident response plan
and infrastructure ``for quickly discovering an attack and then
effectively containing the damage, eradicating the attacker's presence,
and restoring the integrity of the network and systems.'' \213\ The
Critical Security Controls also call for organizations to ``conduct
periodic incident scenario sessions for personnel associated with the
incident handling team, to ensure that they understand current threats
and risks, as well as their responsibilities in supporting the incident
handling teams.'' \214\
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\213\ Council on CyberSecurity, The Critical Security Controls
for Effective Cyber Defense Version 5.1, CSC 18, at 96, available at
http://www.counciloncybersecurity.org/critical-controls/.
\214\ Id. at 97.
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c. Flexibility Regarding Forms of SIRP Testing
SIRP testing can take a number of possible forms, consistent with
generally accepted standards and best practices, and accordingly, the
proposed rule would apply the general requirement that the forms of
testing addressed in an entity's security incident response plan should
be aligned with an entity's appropriate analysis of its system
safeguards-related risks. As noted in NIST's best practices regarding
security incident response testing:
Organizations test incident response capabilities to determine
overall effectiveness of the capabilities and to identify potential
weaknesses or deficiencies. Incident response testing includes, for
example, the use of checklists, walk-through or tabletop exercises,
simulations (parallel/full interrupt), and comprehensive exercises.
Incident response testing can also include a determination of the
effects on organizational operations (e.g., reduction in mission
capabilities), organizational assets, and individuals due to
incident response.\215\
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\215\ NIST SP 800-53 Rev. 4, control IR-3 Incident Response
Testing, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
As provided in the proposed rule, the scope of the plan and its testing
should be broad enough to support entity resilience with respect to
security incidents that is sufficient to enable the entity to fulfill
its statutory and regulatory responsibilities. Such resilience should
include the ability to detect, contain, respond to, and recover from
both cyber and physical security incidents in a timely fashion.
d. Best Practices Provide Guidance Regarding Appropriate SIRP Contents
The Commission notes that its existing system safeguards rules and
guidance for DCMs, SEFs, and SDRs provide that those entities should
follow generally accepted standards and best practices in meeting the
testing requirements applicable to their required program of risk
analysis and oversight with respect to system safeguards, and that this
applies with respect to SIRPs and their testing.\216\ Best practices
provide useful guidance concerning the contents of an adequate SIRP.
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\216\ 17 CFR 38.1050; 17 CFR 38.1051(a) and (b) (for DCMs);
Appendix A to Part 37, Core Principle 14 of Section 5h of the Act--
System Safeguards (a) Guidance (1) Risk analysis and oversight
program (for SEFs); 17 CFR 49.24(a) through (c) (for SDRs).
---------------------------------------------------------------------------
For example, NIST calls for an organization to develop, document,
and distribute to the appropriate personnel ``an incident response
policy that addresses purpose, scope, roles, responsibilities,
management commitment, coordination among organizational entities, and
compliance,'' as well as ``procedures to facilitate the implementation
of the incident response policy and associated incident response
controls.'' \217\ NIST further recommends that an
[[Page 80157]]
organization should develop and maintain an incident response plan
that:
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\217\ NIST SP 800-53 Rev. 4, control IR-1 Incident Response
Policy and Procedures, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
1. Provides the organization with a roadmap for implementing its
incident response capability;
2. Describes the structure and organization of the incident
response capability;
3. Provides a high-level approach for how the incident response
capability fits into the overall organization;
4. Meets the unique requirements of the organization, which
relate to mission, size, structure, and functions;
5. Defines reportable incidents;
6. Provides metrics for measuring the incident response
capability within the organization;
7. Defines the resources and management support needed to
effectively maintain and mature an incident response capability; and
8. Is reviewed and approved by [appropriate organization-defined
personnel or roles].\218\
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\218\ NIST SP 800-53 Rev. 4, control IR-8 Incident Response
Plan, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
NIST also calls for the organization to distribute copies of the plan
to appropriate personnel; review the plan at an appropriate frequency;
update the plan ``to address system/organizational changes or problems
encountered during plan implementation, execution, or testing;''
communicate plan changes to appropriate personnel; and protect the plan
from unauthorized disclosure and modification.\219\ NIST notes that
while incident response policies are individualized to the
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organization, most policies include the same key elements:
\219\ Id.
Statement of management commitment.
Purpose and objectives of policy.
Scope of the policy (to whom and what it applies and
under what circumstances).
Definition of computer security incidents and related
terms.
Organizational structure and definition of roles,
responsibilities, and levels of authority; should include the
authority of the incident response team to confiscate or disconnect
equipment and to monitor suspicious activity, the requirements for
reporting certain types of incidents, the requirements and
guidelines for external communications and information sharing
(e.g., what can be shared with whom, when, and over what channels),
and the handoff and escalation points in the incident management
process.
Prioritization or severity ratings of incidents.
Performance measures.
Reporting and contact forms.\220\
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\220\ NIST SP 800-61 Rev. 2, section 2.3.1 Policy Elements,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-61r2.pdf.
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e. Proposed SIRP Definitions and Related Provisions
In this NPRM, the Commission is proposing to clarify the existing
testing requirements for all DCMs, SEFs, and SDRs by specifying SIRP
testing as essential to fulfilling those requirements, and defining it.
The proposed rule would define ``security incident'' as a cyber or
physical security event that actually or potentially jeopardizes
automated system operation, reliability, security, or capacity, or the
availability, confidentiality, or integrity of data. The proposed rule
would define ``security incident response plan'' as a written plan that
documents the DCM's, SEF's, or SDR's policies, controls, procedures,
and resources for identifying, responding to, mitigating, and
recovering from security incidents, as well as the roles and
responsibilities of management, staff, and independent contractors in
responding to security incidents. This definition notes that a SIRP may
be a separate document or a BC-DR plan section or appendix dedicated to
security incident response. The proposed rule would define ``security
incident response plan testing'' as testing of a DCM's, SEF's, or SDR's
SIRP to determine its effectiveness, identify its potential weaknesses
or deficiencies, enable regular updating and improvement, and maintain
the entity's preparedness and resiliency with respect to security
incidents. This definition adds that methods of conducting SIRP testing
may include (without limitation) checklist completion, walk-through or
table-top exercises, simulations, and comprehensive exercises.
The proposed rule would require all DCMs, SEFs, and SDRs to conduct
SIRP testing at a frequency determined by an appropriate risk analysis.
As discussed above, testing as often as indicated by appropriate risk
analysis is a best practice.\221\ The Commission believes that in
today's cybersecurity threat environment, appropriate risk analysis may
well call for conducting frequent SIRP tests of various types. The
flexibility regarding forms of SIRP testing provided by the proposed
rule is designed in part to encourage appropriately frequent SIRP
testing.
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\221\ See discussion above concerning vulnerability testing.
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f. Minimum SIRP Testing Frequency Requirements for Covered DCMs and
SDRs
The proposed rule would call for a covered DCM or an SDR to conduct
SIRP testing no less frequently than annually.\222\ Best practices
support this requirement. For example, NIST calls for organizations to
test their systems-related contingency plans and incident response
capabilities at least annually.\223\
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\222\ The Commission understands that many covered DCMs (as
defined) and many SDRs currently conduct SIRP testing at least
annually.
\223\ NIST SP 800-84, Guide to Test, Training, and Exercise
Programs for IT Plans and Capabilities, at 2-4 (citing NIST SP 800-
53, Rev. 4, Security and Privacy Controls for Federal Information
Systems and Organizations).
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g. Who Performs Security Incident Response Plan Testing
The proposed rule would leave to covered DCMs and SDRs (as well as
to all other DCMs and to all SEFs) the choice of having security
incident response plan testing conducted by independent contractors or
by employees of the covered DCM or SDR. This provision of the proposed
rule therefore would not impose any additional burdens or costs on DCMs
or SDRs.
7. Enterprise Technology Risk Assessment
a. Enterprise Technology Risk Assessment Definition and Purpose
The proposed rule would clarify the testing requirements of the
Commission's current system safeguards rules for all DCMs, SEFs, and
SDRs by specifying that conducting regular enterprise technology risk
assessments (``ETRAs'') is essential to meeting those testing
requirements. The proposed rule would define ETRAs as written
assessments that include (without limitation) an analysis of threats
and vulnerabilities in the context of mitigating controls. As further
defined, an ETRA identifies, estimates, and prioritizes a DCM's, SEF's
or SDR's risks to operations or assets, or to market participants,
individuals, or other entities, resulting from impairment of the
confidentiality, integrity, or availability of data and information or
the reliability, security, or capacity of automated systems. The
purpose of assessments of enterprise risk is identifying (a) threats
and vulnerabilities, (b) the harm that could occur given the potential
for threats that exploit vulnerabilities, and (c) the likelihood that
such harm will occur, in order to produce a broad determination of the
organization's system safeguards-related risks.\224\ According to NIST,
such risk assessment is necessary for well-informed, risk-based
leadership
[[Page 80158]]
decisions that ``balance the benefits gained from the operation and use
of . . . information systems with the risk of the same systems being
vehicles through which purposeful attacks, environmental disruptions,
or human errors cause mission or business failure.'' \225\
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\224\ NIST SP 800-39, at 1, available at http://csrc.nist.gov/publications/nistpubs/800-39/SP800-39-final.pdf.
\225\ Id.
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An ETRA may be used as the overarching vehicle through which a DCM,
SEF, or SDR draws together and uses the results and lessons learned
from each of the types of cybersecurity and system safeguards testing
addressed in the proposed rule, in order to identify and mitigate its
system safeguards-related risks. As NIST observes, ``[s]ince no one
technique can provide a complete picture of the security of a system or
network, organizations should combine appropriate techniques to ensure
robust security assessments.'' \226\
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\226\ NIST SP 800-115, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
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The proposed rule's testing scope provisions would require that
DCMs, SEFs, and SDRs conduct ETRAs of a scope broad enough to identify
any vulnerability that, if exploited or accidentally triggered, could
enable: (1) Interference with the organization's operations or the
fulfillment of its statutory and regulatory responsibilities, (2)
impairment or degradation of the reliability, security, or capacity of
the organization's automated systems, (3) addition, deletion,
modification, exfiltration, or compromise of any data relating to the
organization's regulated activities, or (4) any other unauthorized
action affecting the organization's regulated activities or the
hardware or software used in connection with them. The proposed rule
would not, however, specify particular methods, structures, or
frameworks for ETRAs. Best practices provide a number of sources for
such risk assessment frameworks,\227\ and a DCM, SEF, or SDR would have
flexibility to choose the assessment framework it believes most
appropriate to its particular circumstances. FINRA notes that
approaches to integrating threats and vulnerabilities in an overall
risk assessment report often differ, with some organizations following
proprietary risk assessment methodologies and others using vendor
products tailored to their particular needs, and with firms using a
variety of cyber incident and threat intelligence inputs for their risk
assessments.\228\ The flexibility provided by the proposed rule in this
respect is intended to reduce the costs of performing an ETRA to the
extent practicable while still ensuring the sufficiency of the
important assessment process.
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\227\ See, e.g., ISACA, COBIT 5; International Organisation for
Standardisation and International Electrotechnical Commission
(``ISO/IEC'') 27001; FFIEC.
\228\ FINRA, Report on Cybersecurity Practices (February 2015),
at 14, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
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The proposed rule would require all DCMs, SEFs, and SDRs to conduct
ETRAs at a frequency determined by an appropriate risk analysis. As
noted above, conducting testing and assessment as often as indicated by
such risk analysis is a best practice.\229\
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\229\ See discussion of vulnerability testing frequency.
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b. Best Practices Call for ETRAs
Regular performance of ETRAs is a best practice. In describing such
assessments and emphasizing their importance, FFIEC states that:
Financial institutions must maintain an ongoing information
security risk assessment program that effectively:
Gathers data regarding the information and technology
assets of the organization, threats to those assets,
vulnerabilities, existing security controls and processes, and the
current security standards and requirements;
Analyzes the probability and impact associated with the
known threats and vulnerabilities to their assets; and
Prioritizes the risks present due to threats and
vulnerabilities to determine the appropriate level of training,
controls, and assurance necessary for effective mitigation.\230\
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\230\ FFIEC, Information Security IT Examination Handbook, at 7-
8, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
FINRA calls for firms to conduct regular risk assessments to identify
cybersecurity risks, and for such assessments to include ``an
assessment of external and internal threats and asset vulnerabilities,
and prioritized and time-bound recommendations to remediate identified
risks.'' \231\ FINRA calls such risk assessments ``a key driver in a
firm's risk management-based cybersecurity program.'' \232\ ISACA
standards contain similar provisions.\233\
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\231\ FINRA, Report on Cybersecurity Practices (February 2015),
at 12, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
\232\ Id. at 13.
\233\ ISACA, COBIT 5, APO12, Manage Risk, available at https://cobitonline.isaca.org.
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c. Minimum ETRA Frequency Requirements for Covered DCMs and SDRs
The proposed rule would call for covered DCMs and SDRs to conduct
an ETRA no less frequently than annually.\234\ Either annual or more
frequent assessment of technology and cybersecurity risk is a best
practice. For example, FINRA states that firms conducting appropriate
risk assessment do so either annually or on an ongoing basis throughout
the year, in either case culminating in an annual risk assessment
report.\235\ As noted above, FFIEC calls for financial institutions to
maintain ongoing information security risk assessment programs.\236\
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\234\ The Commission understands that most covered DCMs and most
SDRs currently perform cybersecurity and system safeguards risk
assessments on at least an annual basis.
\235\ FINRA, Report on Cybersecurity Practices (February 2015),
at 14, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
\236\ FFIEC, Information Security IT Examination Handbook, at 7-
8, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
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The proposed requirement to prepare a written assessment on at
least an annual basis would not eliminate the need for a covered DCM or
SDR to conduct risk assessment and monitoring on an ongoing basis, as
best practices require. Rather, the proposed requirement is intended to
formalize the risk assessment process and ensure that it is documented
at a minimum frequency. As noted in the FFIEC Handbook: ``Monitoring
and updating the security program is an important part of the ongoing
cyclical security process. Financial institutions should treat security
as dynamic with active monitoring; prompt, ongoing risk assessment; and
appropriate updates to controls.'' \237\
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\237\ Id. at 86.
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d. Who Conducts ETRAs
The proposed rule would permit covered DCMs and SDRs (as well as
all other DCMs and all SEFs) to conduct ETRAs using either independent
contractors or employees not responsible for development or operation
of the systems or capabilities being assessed. Assessment by
independent contractors is congruent with best practices. NIST and
FFIEC note that assessment by independent contractors offers the
benefit of an independent view and approach that might not be provided
by internal assessors, and can lend credibility to assessment
results.\238\ Best practices
[[Page 80159]]
also support assessment by entity employees, provided that they are
suitably independent of the design, installation, maintenance, and
operation of systems being assessed.\239\ A dedicated risk department,
an internal audit department, or a Chief Compliance Officer would be
examples of entity employees who could appropriately conduct an ETRA.
Because the proposed rule gives flexibility to covered DCMs and SDRs
regarding who conducts ETRAs, this provision will not impose additional
costs.\240\
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\238\ See NIST SP 800-115, at 6-6, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf; and
FFIEC, Information Security IT Examination Handbook, at 81,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\239\ Id. See also, e.g., ISACA, COBIT 5, MEA02.05, Ensure that
assurance providers are independent and qualified, available at
https://cobitonline.isaca.org/.
\240\ The requirements proposed by the Commission regarding
enterprise technology risk assessment are generally consistent with
the SEC's Regulation SCI, issued in final form in December 2014.
Regulation SCI applies to SCI entities, defined as including, among
other things, national securities exchanges, alternative trading
systems, and registered clearing agencies. It requires each SCI
entity to conduct SCI reviews that include automated system risk
assessments, in a manner consistent with industry standards. SCI
reviews must be conducted at least annually.
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G. Additional Testing-Related Risk Analysis and Oversight Program
Requirements Applicable To All DCMs, SEFs, and SDRs
As noted above, the Act requires each DCM, SEF, and SDR to develop
and maintain a program of system safeguards-related risk analysis and
oversight to identify and minimize sources of operational risk.\241\
The Act mandates that in this connection each DCM, SEF, and SDR must
develop and maintain automated systems that are reliable, secure, and
have adequate scalable capacity, and must ensure system reliability,
security, and capacity through appropriate controls and
procedures.\242\ The Commission's existing system safeguards rules for
DCMs, SEFs, and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\243\ The existing rules and
guidance also provide that a DCM's, SEF's, or SDR's entire program of
risk analysis and oversight, which includes such testing, should be
based on generally accepted standards and best practices with respect
to the development, operation, reliability, security, and capacity of
automated systems.\244\
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\241\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\242\ Id.
\243\ 17 CFR 38.1051(h) (for DCMs); 17 CFR 37.1401(g) (for
SEFs); 17 CFR 49.24(j) (for SDRs).
\244\ See 17 CFR 38.1051(b) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (1) Risk analysis and oversight program (for SEFs); 17 CFR
49.24(c) (for SDRs).
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In this NPRM, in addition to clarifying the existing testing
requirements for DCMs, SEFs, and SDRs by specifying and defining the
five types of testing that these entities necessarily must perform to
fulfill those requirements, the Commission also proposes to clarify the
testing requirements by specifying and defining three other aspects of
DCM, SEF, and SDR risk analysis and oversight programs that are
necessary to fulfillment of the testing requirements and achievement of
their purposes. These three aspects are: (1) The scope of testing and
assessment, (2) internal reporting and review of test results, and (3)
remediation of vulnerabilities and deficiencies revealed by testing.
These risk analysis and oversight program aspects are generally
recognized best practice for system safeguards. As best practices and
also the Act and the regulations themselves make clear, it would be
essentially impossible for a DCM, SEF, or SDR to fulfill its obligation
to conduct testing sufficient to ensure the reliability, security, and
capacity of its automated systems without conducting testing of
appropriate scope; without performing appropriate internal reporting
and review of test results; or without remediating vulnerabilities and
deficiencies disclosed by testing, in line with appropriate risk
analysis.\245\ This has been true since before the testing requirements
of the Act and the current regulations were adopted.\246\ Accordingly,
the provisions of the proposed rule addressing testing scope, internal
reporting and review, and remediation clarify the testing requirements
of the existing system safeguards rules for DCMs, SEFs, and SDRs; they
do not impose new requirements.
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\245\ See e.g., NIST SP 800-115, Technical Guide to Information
Security Testing and Assessment, at 6-10--6-12, September 2008,
available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf; NIST SP 800-53A Rev. 4, at 10, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf;
FFIEC, Information Security IT Examination Handbook, at 5, available
at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf; NIST SP 800-53 Rev. 4,
Program Management (``PM'') control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
FINRA, Report on Cybersecurity Practices, February 2015, at 8,
available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf; FFIEC,
Audit IT Examination Handbook, Objective 6, at A-4, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf;
ISACA, COBIT 5, APO12, available at https://cobitonline.isaca.org/.
\246\ The current system safeguards provisions of the CEA and
the Commission's regulations became effective in August 2012.
Generally accepted best practices called for appropriate testing
scope, internal reporting and review of test results, and
remediation of vulnerabilities and deficiencies disclosed by testing
well before that date, as shown in the following examples. Regarding
scope of testing and assessment, see, e.g., NIST SP 800-115,
Technical Guide to Information Security Testing and Assessment, at
6-10 to 6-12, September 2008, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf. Regarding internal
reporting and review, see, e.g., FFIEC, Information Security IT
Examination Handbook, at 5, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf. Regarding remediation, see,
e.g., FFIEC, Audit IT Examination Handbook, Objective 6, at A-4,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
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1. Scope of Testing and Assessment
The Commission is proposing that the scope of all testing and
assessment required by its system safeguards regulations for DCMs,
SEFs, and SDRs should be broad enough to include all testing of
automated systems and controls necessary to identify any vulnerability
which, if exploited or accidentally triggered, could enable an intruder
or unauthorized user or insider to interfere with the entity's
operations or with fulfillment of its statutory and regulatory
responsibilities; to impair or degrade the reliability, security, or
capacity of the entity's automated systems; to add to, delete, modify,
exfiltrate, or compromise the integrity of any data related to the
entity's regulated activities; or to undertake any other unauthorized
action affecting the entity's regulated activities or the hardware or
software used in connection with those activities.
Testing scope should take into account not only an organization's
particular automated systems and networks and vulnerabilities,
including any recent changes to them, but also the nature of the
organization's possible adversaries and their capabilities as revealed
by current cybersecurity threat analysis: iI short, it should be based
on proper risk analysis.\247\ The Commission recognizes that, as
Roundtable panelists noted, the scope set for particular instances of
the various types of cybersecurity testing can vary appropriately.\248\
The scope provisions
[[Page 80160]]
of the proposed rule are designed to give a DCM, SEF, or SDR
flexibility with regard to setting the scope of particular
cybersecurity tests, so long as its overall program of testing is
sufficient to provide adequate assurance of the overall effectiveness
of its cybersecurity controls with respect to its system safeguards-
related risks. The Commission believes that the scope of testing and
assessment set out in the proposed rule is broad enough to provide the
needed flexibility, while still providing sufficient guidance regarding
the testing scope necessary for an adequate program of system
safeguards-related risk analysis and oversight. Such flexibility should
reduce costs and burdens associated with the proposed scope
requirements to the extent possible while still ensuring the system
safeguards resilience necessary in today's cybersecurity threat
environment.
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\247\ CFTC Roundtable, at 97, 100-101, 107-111, 127-130, 139-
141, 172-180.
\248\ Id.
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2. Internal Reporting and Review
The proposed rule would require that a DCM's, SEF's, or SDR's
senior management and its Board of Directors receive and review reports
of the results of all testing and assessment required by Commission
rules. It also would require DCMs, SEFs, and SDRs to establish and
follow appropriate procedures for remediation of issues identified
through such review, and for evaluation of the effectiveness of the
organization's testing and assessment protocols.
Oversight of an organization's cybersecurity and system safeguards
program by both senior management and the Board of Directors is a best
practice. According to FINRA:
Active executive management--and as appropriate to the firm,
board-level involvement--is an essential effective practice to
address cybersecurity threats. Without that involvement and
commitment, a firm is unlikely to achieve its cybersecurity
goals.\249\
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\249\ FINRA, Report on Cybersecurity Practices, February 2015,
at 7, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
FINRA observes that ``[b]oards should play a leadership role in
overseeing firms' cybersecurity efforts,'' and states that they should
understand and approach cybersecurity as an enterprise-wide risk
management issue rather than merely an information technology
issue.\250\ As noted by FINRA, the absence of proactive senior
management and board involvement in cybersecurity can make firms more
vulnerable to successful cybersecurity attacks.\251\ The FFIEC states
that regular reports to the board should address the results of the
organization's risk assessment process and of its security monitoring
and testing, including both internal and external audits and
reviews.\252\ In addition, FFIEC calls for boards to review
recommendations for changes to the information security program
resulting from testing and assessment, and to review the overall
effectiveness of the program.\253\
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\250\ Id.
\251\ Id. at 8.
\252\ FFIEC, Information Security IT Examination Handbook, at 5,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\253\ Id. See also, e.g., NIST SP 800-53 Rev. 4, Program
Management (``PM'') control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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3. Remediation
The proposed rule would require each DCM, SEF, and SDR to analyze
the results of the testing and assessment required by the applicable
system safeguards rules, in order to identify all vulnerabilities and
deficiencies in its systems, and to remediate those vulnerabilities and
deficiencies to the extent necessary to enable it to fulfill the
applicable system safeguards requirements and meet its statutory and
regulatory obligations. The proposed rule would require such
remediation to be timely in light of appropriate risk analysis with
respect to the risks presented.
Remediation of vulnerabilities and deficiencies revealed by
cybersecurity testing is a best practice and a fundamental purpose of
such testing. FFIEC calls for management of financial sector
organizations to take appropriate and timely action to address
identified cybersecurity and system safeguards problems and
weaknesses.\254\ ISACA's COBIT 5 standards call for organizations to
continually identify, assess, and reduce IT-related risk within levels
of tolerance set by executive management.\255\
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\254\ FFIEC, Audit IT Examination Handbook, Objective 6, at A-4,
available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
\255\ ISACA, COBIT 5, APO12, available at https://cobitonline.isaca.org/.
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Best practices recognize that risk mitigation decisions and
activities need to be prioritized in light of appropriate risk
analysis, and that prompt and sufficient corrective action should
target not only significant deficiencies noted in testing and
assessment reports but also the root causes of such deficiencies.\256\
The minimum basis for system safeguards remediation decisions,
priorities, and actions by DCMs, SEFs, and SDRs is set out in the
proposed rule: DCMs, SEFs, and SDRs must remediate system safeguards
vulnerabilities and deficiencies sufficiently to enable them to meet
applicable system safeguards requirements and fulfill their statutory
and regulatory obligations. Remediation that failed to meet this
standard would not provide adequate system safeguards protection in
today's cybersecurity threat environment, and could result in
unacceptable harm to the public or the national economy.
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\256\ See, e.g., NIST SP 800-53A Rev. 4, at 3, available at
http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf; FFIEC, Audit IT Examination Handbook, Objective 6,
at A-4, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf.
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H. Required Production of Annual Total Trading Volume
As discussed above in preamble section F, the proposed rule would
create requirements applicable to covered DCMs, as defined, as well as
to SDRs, concerning system safeguards testing frequency and testing by
independent contractors. As also discussed above, the Commission
believes that the minimum testing frequency and independent contractor
testing requirements in the proposed rule should be applied to DCMs
whose annual total trading volume is five percent or more of the annual
total trading volume of all DCMs regulated by the Commission. This
would give DCMs that have less than five percent of the annual total
trading volume of all DCMs more flexibility regarding the testing they
must conduct. With respect to DCMs, the Commission believes that
applying the proposed frequency and independent contractor requirements
only to DCMs whose annual total trading volume is five percent or more
of the annual total trading volume of all regulated DCMs may be
appropriate, in light of the fact that smaller DCMs will still be
required to conduct testing of all the types addressed in the proposed
rule pursuant to the existing DCM system safeguards rules.
In order to provide certainty to all DCMs concerning whether the
testing frequency and independent contractor provisions of the propose
rule would apply to them, it is necessary for the Commission to receive
annually from each DCM, beginning in 2016, its annual total trading
volume for the preceding year, and to notify each DCM annually,
beginning in 2016, of the percentage of the annual total trading volume
of all DCMs which is constituted by that DCM's annual total trading
volume for the preceding year. The proposed rule therefore would
require each DCM to report its annual total trading volume for 2015 to
the Commission within 30 calendar days of the effective date of the
[[Page 80161]]
final rule, and to report its annual total volume for 2016 and each
subsequent year thereafter to the Commission by January 31 of 2017 and
of each calendar year thereafter.\257\
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\257\ The SEC's Regulation SCI, issued in final form in December
2014, employs similar methodology to distinguish in some cases which
entities are subject to SCI review requirements. Regulation SCI uses
percentages of average daily dollar volume of stock trading to
determine whether alternative trading systems are subject to
Regulation SCI as SCI entities.
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I. Advance Notice of Proposed Rulemaking Regarding Minimum Testing
Frequency and Independent Contractor Testing Requirements for Covered
SEFs
The Commission is considering proposing, by means of a future NPRM,
that the most systemically important SEFs should be subject to the same
new minimum testing frequency requirements proposed in this NPRM for
covered DCMs and SDRs. It is also considering proposing, by means of a
future NPRM, that the most systemically important SEFs should be
subject to the same independent contractor testing requirements
proposed in this NPRM for covered DCMs and SDRs. Accordingly, by means
of this concluding section of the preamble and the related set of
questions and requests for comment at the conclusion of the Requests
for Comment section, the Commission is issuing an Advance Notice of
Proposed Rulemaking (``ANPRM'') with respect to these subjects.
As discussed above, the Commission believes that, in light of the
current cyber threat environment, the minimum frequency requirements
and independent contractor testing requirements proposed in this NPRM
for covered DCMs and SDRs are necessary and appropriate for ensuring
the cybersecurity and resiliency of such entities, and are essential to
the effectiveness of their cybersecurity testing and the adequacy of
their programs of system safeguards risk analysis and oversight. As
noted above, these requirements are grounded in generally accepted
standards and best practices.\258\ The Commission also believes, as
discussed above, that the independent contractor testing requirements
proposed in this NPRM for covered DCMs and SDRs will appropriately
strengthen the objectivity and reliability of the testing, assessment,
and information available to the Commission regarding covered DCM and
SDR system safeguards.
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\258\ See discussion above concerning the need for cybersecurity
testing.
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For the same reasons, the Commission believes that it is
appropriate and necessary to consider applying these same minimum
testing frequency and independent contractor testing requirements to
the most systemically important SEFs. The Commission is aware that at
this time SEFs are new CFTC-regulated entities still awaiting final
registration by the Commission, and that the SEF market is still in an
early stage of development. Nevertheless, the Commission believes that
SEFs that trade swaps with significant notional value or that trade
significant numbers of swaps may have become systemically important
enough that such requirements for them may now have become essential,
in light of today's cybersecurity threat environment (discussed above),
the importance of the swap market to the U.S. economy, as recognized by
the Dodd-Frank Act, and the notional value and volume of swaps traded
on larger SEFs or pursuant to their rules.
Preliminarily, the Commission believes it is appropriate to
consider defining the ``covered SEFs'' to which these requirements
would be applied as those SEFs for which the annual total notional
value of all swaps traded on or pursuant to the rules of the SEF is ten
percent (10%) or more of the annual total notional value of all swaps
traded on or pursuant to the rules of all SEFs regulated by the
Commission. This threshold would give SEFs that have less than ten
percent of the annual total notional value of all swaps traded more
flexibility regarding the testing they must conduct. As a matter of
policy, the Commission believes it is appropriate to reduce possible
costs and burdens for smaller entities when it is possible to do so
consistent with achieving the fundamental goals of the Act and
Commission rules. Accordingly, the Commission believes, preliminarily,
that applying the minimum frequency and independent contractor
requirements in this proposed rule only to SEFs that have ten percent
or more of the annual total notional value of all swap traded would be
appropriate, in light of the fact that smaller SEFs will still be
required, pursuant to this current NPRM, to conduct testing of all the
types clarified in the NPRM as essential to fulfilling the testing
requirements of the existing SEF system safeguards rules. The
Commission also notes that, under this current NPRM and the parallel
NPRM being issued with respect to DCOs, a non-covered SEF that shares
common ownership and automated systems with a DCO, a covered DCM, or an
SDR would in practice fulfill the testing frequency and independent
contractor testing requirements by virtue of sharing automated systems
and system safeguards with the DCO, covered DCM, or SDR.
However, the Commission will also consider whether it would be more
appropriate to define ``covered SEF'' in terms of annual total notional
value of swaps traded, or in terms of annual total number of swaps
traded, and how notional value would best be defined in this context.
It will also consider what percentage share of the annual total
notional value of all swaps traded on all SEFs regulated by the
Commission, or of the annual total number of swaps traded, should be
used to define ``covered SEF.'' It will further consider whether it
would be more appropriate for the definition to be applied with respect
to the notional value or the number of swaps in each asset class
separately, or to be applied with respect to the notional value or the
number of all swaps combined regardless of asset class.
Accordingly, in the final part of the Request for Comment section
below, the Commission is seeking comments regarding each of these
considerations. The Commission will consider all such comments in
determining what definition of ``covered SEF'' it should propose in a
future NPRM on this subject, if such a proposal is made. The Commission
is also seeking information relating to the possible costs and benefits
of applying the minimum testing frequency and independent contractor
testing requirements to covered SEFs, and how such benefits or costs
could be quantified or estimated. In addition, the Commission seeks
additional information regarding the extent to which SEFs are currently
meeting these requirements. Finally, the Commission seeks additional
information concerning the most appropriate method for SEFs to report
annually to the Commission their annual total notional value of swaps
traded or their annual total number of swaps traded.
II. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA'') requires that agencies
consider whether the regulations 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.\259\
The rules proposed by the Commission will impact DCMs, SEFs, and SDRs.
The Commission has
[[Page 80162]]
previously established certain definitions of ``small entities'' to be
used by the Commission in evaluating the impact of its regulations on
small entities in accordance with the RFA.\260\ The Commission has
previously determined that DCMs, SEFs, and SDRs are not small entities
for the purpose of the RFA.\261\ Therefore, the Chairman, on behalf of
the Commission pursuant to 5 U.S.C. 605(b), certifies that the proposed
rules will not have a significant economic impact on a substantial
number of small entities.
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\259\ 5 U.S.C. 601 et seq.
\260\ See 47 FR 18618-21 (Apr. 30, 1982).
\261\ See 47 FR 18618, 18619 (Apr. 30, 1982) discussing DCMs; 78
FR 33548 (June 4, 2013) discussing SEFs; 76 FR 54575 (Sept. 1, 2011)
discussing SDRs.
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B. Paperwork Reduction Act
1. Introduction
The Paperwork Reduction Act of 1995 (``PRA'') \262\ imposes certain
requirements on Federal agencies, including the Commission, in
connection with their conducting or sponsoring any collection of
information, as defined by the PRA. An agency may not conduct or
sponsor, and a person is not required to respond to, a collection of
information unless it displays a currently valid control number. This
proposed rulemaking contains recordkeeping and reporting requirements
that are collections of information within the meaning of the PRA.
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\262\ 44 U.S.C. 3501 et seq.
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The proposed rulemaking contains provisions that would qualify as
collections of information, for which the Commission has already sought
and obtained control numbers from the Office of Management and Budget
(``OMB''). The titles for these collections of information are ``Part
38-Designated Contract Markets'' (OMB Control Number 3038-0052), ``Part
37-Swap Execution Facilities'' (OMB Control Number 3038-0074), and
``Part 49-Swap Data Repositories; Registration and Regulatory
Requirements'' (OMB Control Number 3038-0086). If adopted, responses to
these collections of information would be mandatory. As discussed
below, with the exception of proposed Sec. 38.1051(n) that would
require all DCMs to submit annual trading volume information to the
Commission, the Commission believes the proposal will not impose any
new recordkeeping or reporting requirements that are not already
accounted for in existing collections 3038-0052,\263\ 3038-0074,\264\
and 3038-0086.\265\ Accordingly, the Commission invites public comment
on the accuracy of its estimate regarding the impact of proposed Sec.
38.1051(n) on collection 3038-0052 and its determination that no
additional recordkeeping or information collection requirements or
changes to existing collection requirements would result from the
proposal.
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\263\ See OMB Control No. 3038-0052, available at http://www.reginfo.gov/public/do/ PRAOMBHistory?ombControlNumber=3038-0052.
\264\ See OMB Control No. 3038-0074, available at http://www.reginfo.gov/public/do/PRAOMBHistory?ombControlNumber=3038-0074.
\265\ See OMB Control No. 3038-0086, available at http://www.reginfo.gov/public/do/ PRAOMBHistory?ombControlNumber=3038-0086.
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The Commission will protect proprietary information according to
the Freedom of Information Act (``FOIA'') and 17 CFR part 145,
``Commission Records and Information.'' In addition, section 8(a)(1) of
the Act strictly prohibits the Commission, unless specifically
authorized by the Act, from making public ``data and information that
would separately disclose the business transactions or market positions
of any person and trade secrets or names of customers.'' The Commission
is also required to protect certain information contained in a
government system of records according to the Privacy Act of 1974.
2. Clarification of Collections 3038-0052, 3038-0074, and 3038-0086
The Commission notes that all DCMs, SEFs, and SDRs are already
subject to system safeguard-related books and records obligations.
However, with the exception of business continuity-disaster recovery
testing, the records relating to a particular system safeguard test or
assessment are not explicitly addressed in the current rules.
Therefore, as discussed above in Section I.E., the Commission is
proposing to amend Sec. Sec. 38.1051(g), 37.1041(g), and 49.24(i) to
clarify the system safeguard-related books and records obligations for
all DCMs, SEFs, and SDRs. The proposed regulations would require these
entities, in accordance with Commission regulation Sec. 1.31,\266\ to
provide the Commission with the following system safeguards-related
books and records promptly upon request of any Commission
representative: (1) current copies of the BC-DR plans and other
emergency procedures; (2) all assessments of the entity's operational
risks or system safeguard-related controls; (3) all reports concerning
system safeguards testing and assessment required by this chapter,
whether performed by independent contractors or employees of the DCM,
SEF, or SDR; and (4) all other books and records requested by
Commission staff in connection with Commission oversight of system
safeguards pursuant to the Act or Commission regulations, or in
connection with Commission maintenance of a current profile of the
entity's automated systems. The pertinent recordkeeping and reporting
requirements of proposed Sec. 38.1051(g) are contained in the
provisions of current Commission regulations Sec. Sec. 38.1051(g)
\267\ and (h),\268\ which were adopted on June 19, 2012 (``DCM Final
Rules'').\269\ In the DCM Final Rules, the Commission estimated that
each respondent subject to the part 38 requirements would experience a
10 percent increase, or 30 additional hours, in the information
collection burden as a result of the regulations implementing certain
core principles, including Core Principle 20 (System Safeguards).\270\
The pertinent recordkeeping and reporting burdens of proposed Sec.
37.1401(g) are contained in the provisions of current Commission
regulations Sec. Sec. 37.1041(f) \271\ and (g),\272\
[[Page 80163]]
which were adopted on June 4, 2103 (``SEF Final Rules'').\273\ In the
SEF Final Rules, the Commission estimated that each respondent subject
to the part 37 requirements would incur a collection burden of 308
hours annually as a result of the regulations implementing certain core
principles, including Core Principle 14 (System Safeguards).\274\
Additionally, the pertinent recordkeeping and reporting requirements of
proposed Sec. 49.24(i) are contained in the provisions of current
Commission regulations Sec. Sec. 49.24(i) \275\ and (j),\276\ which
were adopted on September 1, 2011 (``SDR Final Rules'').\277\ In the
SDR Final Rules, the Commission determined that the collection burdens
created by the Commission's proposed rules, which were discussed in
detail in the proposing release, are identical to the collective
burdens of the final rules.\278\ The Commission estimated in the
proposing release that the total ongoing annual burden for all of the
Sec. 49.24 requirements is 15,000 burden hours per respondent.\279\
The Commission believes that proposed Sec. Sec. 38.1051(g) and
49.24(i) would not impact the burden estimates currently provided for
in OMB Control Numbers 3038-0052, 3038-0074, and 3038-0086.
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\266\ Commission regulation Sec. 1.31(a)(1) specifically
provides that ``all books and records required to be kept by the Act
or by these regulations shall be kept for a period of five years
from the date thereof and shall be readily accessible during the
first 2 years of the 5-year period.'' The rule further provides that
``all such books and records shall be open to inspection by any
representative of the Commission or the United States Department of
Justice.'' See 17 CFR 1.31(a)(1).
\267\ Commission regulation Sec. 38.1051(g) specifically
provides that ``a designated contract market must provide to the
Commission upon request current copies of the business-continuity
disaster recovery plan and other emergency procedures, its
assessments of its operational risks, and other documents requested
by Commission staff for the purpose of maintaining a current profile
of the designated contract market's systems.'' See 17 CFR
38.1051(g).
\268\ Commission regulation Sec. 38.1051(h) specifically
provides that ``a designated contract market must conduct regular,
periodic, objective testing and review of its automated systems to
ensure that they are reliable, secure, and have adequate scalable
capacity. It must also conduct regular, periodic testing and review
of its business continuity-disaster recovery capabilities.'' The
regulation further provides that ``pursuant to Core Principle 18
(Recordkeeping) and Sec. Sec. 38.950 and 38.951, the designated
contract market must keep records of all such tests, and make all
test results available to the Commission upon request.'' See 17 CFR
38.1051(h).
\269\ 77 FR 36612 (June 19, 2012).
\270\ 77 FR 36664-65 (June 19, 2012).
\271\ Commission regulation Sec. 37.1401(f) specifically
provides that a swap execution facility shall provide to the
Commission, upon request, current copies of its business continuity-
disaster recovery plan and other emergency procedures, its
assessments of its operational risks, and other documents requested
by Commission staff for the purpose of maintaining a current profile
of the swap execution facility's automated systems. See 17 CFR
37.1401(f).
\272\ Commission regulation Sec. 37.1401(g) specifically
provides that a swap execution facility shall conduct regular,
periodic, objective testing and review of its automated systems to
ensure that they are reliable, secure, and have adequate scalable
capacity. A swap execution facility shall also conduct regular,
periodic testing and review of its business continuity-disaster
recovery capabilities. The rule further provides that pursuant to
Core Principle 10 under section 5h of the Act (Recordkeeping and
Reporting) and Sec. Sec. 37.1000 through 37.1001, the swap
execution facility shall keep records of all such tests, and make
all test results available to the Commission upon request. See 17
CFR 37.1401(g).
\273\ 78 FR 33476 (June 4, 2013).
\274\ 78 FR 33551 (June 4, 2013).
\275\ Commission regulation Sec. 49.24(i) specifically provides
that a registered swap data repository shall provide to the
Commission upon request current copies of its business continuity
and disaster recovery plan and other emergency procedures, its
assessments of its operational risks, and other documents requested
by Commission staff for the purpose of maintaining a current profile
of the swap data repository's automated systems. See 17 CFR
49.24(i).
\276\ Commission regulation Sec. 49.24(j) specifically provides
that a registered swap data repository shall conduct regular,
periodic, objective testing and review of its automated systems to
ensure that they are reliable, secure, and have adequate scalable
capacity. It shall also conduct regular, periodic testing and review
of its business continuity-disaster recovery capabilities. The rule
further provides that pursuant to Sec. Sec. 1.31, 49.12 and 45.2 of
the Commission's Regulations, the swap data repository shall keep
records of all such tests, and make all test results available to
the Commission upon request. See 17 CFR 49.24(j).
\277\ 76 FR 54538 (Sept. 1, 2011).
\278\ 76 FR 54572 (Sept. 1, 2011).
\279\ 75 FR 80924 (Dec. 23, 2010).
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3. Proposed Revision to Collection 3038-0052
Proposed Sec. 38.1051(n) would require all DCMs to provide to the
Commission for calendar year 2015, and each calendar year thereafter,
its annual total trading volume. This information would be required
within 30 calendar days of the effective date of the final version of
this rule, and for 2016 and subsequent years by January 31 of the
following calendar year. The Commission believes that all DCMs
generally calculate their annual trading volume in the usual course of
business and many of the DCMs already publish this information on their
Web site. Consequently, the Commission believes that any burden
incurred by the DCMs as a result of proposed Sec. 38.1051(n) would be
minimal. Presently, there are 15 registered DCMs that would be required
to comply with proposed Sec. 38.1051(n) and the burden hours for this
collection have been estimated as follows:
Estimated number of respondents: 15.
Annual responses by each respondent: 1.
Total annual responses: 15.
Estimated average hours per response: 0.5.
Aggregate annual reporting burden: 7.5.
With the respondent burden for this collection estimated to average 0.5
hours per response, the total annual cost burden per respondent is
estimated to be $22.015. The Commission based its calculation on an
hourly wage rate of $44.03 for a Compliance Officer.\280\
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\280\ In arriving at a wage rate for the hourly costs imposed,
Commission staff used the National Industry-Specific Occupational
Employment and Wage Estimates, published in May (2014 Report). The
hourly rate for a Compliance Officer in the Securities and Commodity
Exchanges as published in the 2014 Report was $44.03 per hour.
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4. Information Collection Comments
The Commission invites comment on any aspect of the proposed
information collection requirements discussed above. Pursuant to 44
U.S.C. 3506(c)(2)(B), the Commission will consider public comments on
such proposed requirements in: (1) Evaluating whether the proposed
collection of information is necessary for the proper performance of
the functions of the Commission, including whether the information will
have a practical use; (2) Evaluating the accuracy of the Commission's
estimate of the burden of the proposed collection of information,
including the validity of the methodology and assumptions used; (3)
Enhancing the quality, utility, and clarity of the information proposed
to be collected; and (4) Minimizing the burden of collection of
information on those who are to respond, including through the use of
appropriate automated, electronic, mechanical, or other technological
information collection techniques.
Copies of the submission from the Commission to OMB are available
from the CFTC Clearance Officer, 1155 21st Street NW., Washington, DC
20581, (202) 418-5160 or from http://RegInfo.gov. Persons desiring to
submit comments on the proposed information collection requirements
should send those comments to: The Office of Information and Regulatory
Affairs, Office of Management and Budget, Room 10235, New Executive
Office Building, Washington, DC 20503, Attention: Desk Officer of the
Commodity Futures Trading Commission; (202) 395-6566 (fax); or
[email protected] (email). Please provide the Commission with
a copy of submitted comments so that all comments can be summarized and
addressed in the final rulemaking, and please refer to the ADDRESSES
section of this rulemaking for instructions on submitting comments to
the Commission. OMB is required to make a decision concerning the
proposed information collection requirements between thirty (30) and
sixty (60) days after publication of the Proposal in the Federal
Register. Therefore, a comment to OMB is best assured of receiving full
consideration if OMB (as well as the Commission) receives it within
thirty (30) days of publication of the Proposal.
C. Consideration of Costs and Benefits
1. Introduction
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.\281\ Section 15(a) further
specifies that the costs and benefits shall be evaluated in light of
five broad areas of market and public concern: (1) Protection of market
participants and the public; (2) efficiency, competitiveness, and
financial integrity of futures markets; (3) price discovery; (4) sound
risk management practices; and (5) other public interest
considerations. The Commission considers below the costs and benefits
resulting from its discretionary determinations with respect to the
section 15(a) factors.
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\281\ 7 U.S.C. 19(a).
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As an initial matter, the Commission considers the incremental
costs and benefits of these regulations, that is the
[[Page 80164]]
costs and benefits that are not already present in the current system
safeguard practices and requirements under the Act and the Commission's
regulations for DCMs, SEFs, and SDRs. Where reasonably feasible, the
Commission has endeavored to estimate quantifiable costs and benefits.
Where quantification is not feasible, the Commission identifies and
describes costs and benefits qualitatively.\282\
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\282\ For example, to quantify benefits such as enhanced
protections for market participants and the public and financial
integrity of the futures and swaps markets would require
information, data and/or metrics that either do not exist, or to
which the Commission generally does not have access.
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As discussed below, the Commission has identified certain costs and
benefits associated with some of the proposed regulations and requests
comment on all aspects of its proposed consideration of costs and
benefits, including identification and assessment of any costs and
benefits not discussed herein. In particular, the Commission requests
that commenters provide data and any other information or statistics
that the commenters relied on to reach any conclusions regarding the
Commission's proposed consideration of costs and benefits, including
the series of questions at the end of this section.
2. Background and Baseline for the Proposal
As discussed above in Section I.A., the Commission believes that
the current cyber threats to the financial sector, including DCMs,
SEFs, and SDRs regulated by the Commission, have expanded over the
course of recent years. According to the Committee on Payments and
Market Infrastructures of the Bank for International Settlements,
``Cyber attacks against the financial system are becoming more
frequent, more sophisticated and more widespread.'' \283\ A survey of
46 global securities exchanges conducted by IOSCO and the WFE found
that as of July 2013, over half of exchanges world-wide had experienced
a cyber attack during the previous year.\284\ The Ponemon Institute
2015 Cost of Data Breach Study, which included 350 companies, found
that the average cost of a data breach is $3.79 million, which
represents a 23 percent increase from the 2014 study.\285\ Moreover,
the study concluded that the consequences of lost business are having a
greater impact on the cost of a data breach with the average cost
increasing from $1.33 million last year to $1.57 million this
year.\286\ Accordingly, the current cyber threat environment highlights
the need to consider an updated regulatory framework with respect to
cybersecurity testing for DCMs, SEFs, and SDRs. Although the Commission
acknowledges that the proposal would likely result in some additional
costs, particularly for some covered DCMs and SDRs, the proposal would
also bring several overarching benefits to the futures and swaps
industry. A comprehensive cybersecurity testing program is important to
efforts by the regulated entities to harden cyber defenses, to mitigate
operations, reputation, and financial risk, and to maintain cyber
resilience and ability to recover from cyber attack.\287\
Significantly, to ensure the effectiveness of cybersecurity controls, a
financial sector entity must test in order to find and fix its
vulnerabilities before an attacker exploits them.
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\283\ Committee on Payments and Market Infrastructures of the
Bank for International Settlements, Cyber resilience in financial
market infrastructures (November 2014), at 1.
\284\ IOSCO and WFE, Cyber-crime, securities markets and
systemic risk, Staff Working Paper (SWP2/2013) (July 16, 2013), at
3, available at http://www.iosco.org/research/pdf/swp/Cyber-Crime-Securities-Markets-and-Systemic-Risk.pdf.
\285\ Ponemon Institute Research Report sponsored by IBM, 2015
Cost of Data Brach Study: Global Analysis (May 2015), at 1.
\286\ Id. at 2. The cost component includes the abnormal
turnover of customers, increased customer acquisition activities,
reputation losses and diminished goodwill. The growing awareness of
identity theft and customers' concerns about the security of their
personal data following a breach has contributed to the lost
business.
\287\ CFTC Roundtable, at 24.
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The Commission recognizes that any economic effects, including
costs and benefits, should be compared to a baseline that accounts for
current regulatory requirements. The baseline for this cost and benefit
consideration is the set of existing requirements under the Act and the
Commission's regulations for DCMs, SEFs, and SDRs. As discussed in the
preamble, the Act requires each DCM, SEF, and SDR to develop and
maintain a program of system safeguards-related risk analysis and
oversight to identify and minimize sources of operational risk.\288\
The Act also mandates that each DCM, SEF, and SDR must develop and
maintain automated systems that are reliable, secure, and have adequate
scalable capacity, and must ensure system reliability, security, and
capacity through appropriate controls and procedures.\289\ The
Commission's existing system safeguards rules for DCMs, SEFs, and SDRs
mandate that, in order to achieve these statutory requirements, each
DCM, SEF, and SDR must conduct testing and review sufficient to ensure
that its automated systems are reliable, secure, and have adequate
scalable capacity.\290\
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\288\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\289\ Id.
\290\ 17 CFR 38.1051(h) (for DCMs); 17 CFR 37.1401(g) (for
SEFs); 17 CFR 49.24(j) (for SDRs).
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As discussed above, the Commission proposes to clarify the system
safeguards and cybersecurity testing requirements of its existing rules
for DCMs, SEFs, and SDRs, by specifying and defining five types of
system safeguards testing that a DCM, SEF, or SDR necessarily must
perform to fulfill the testing requirement. Each of the types of
testing and assessment that would be required under the proposed rule--
vulnerability testing, penetration testing, controls testing, security
incident response plan testing, and enterprise technology risk
assessment--is a generally recognized best practice for system
safeguards, as discussed above and discussed in detail below. Moreover,
the Commission believes, as the generally accepted standards and best
practices noted in this NPRM make it clear, that it would be
essentially impossible for a DCM, SEF, or SDR to fulfill its existing
obligation to conduct testing sufficient to ensure the reliability,
security, and capacity of its automated systems without conducting each
type of testing addressed by the proposed rule. This has been true
since before the testing requirements of the Act and the current
regulations were adopted, and it would be true today even if the
Commission were not issuing this NPRM.\291\ Accordingly, as
[[Page 80165]]
discussed below in this consideration of costs and benefits section,
the Commission believes that, with the exception of the minimum testing
frequency and independent contractor requirements for covered DCMs and
SDRs, the proposed rules calling for each DCM, SEF, and SDR to conduct
each of these types of testing and assessment will not impose any new
costs on DCMs, SEFs, and SDRs. If compliance with the clarified testing
requirements proposed herein results in costs to DCMs, SEFs, and SDRs,
the Commission believes that those are costs associated with compliance
with existing testing requirements and not the proposed rules.
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\291\ The Commission's existing rules and guidance provide that
a DCM's, SEF's, or SDR's entire program of risk analysis and
oversight, which includes testing, should be based on generally
accepted standards and best practices with respect to the
development, operation, reliability, security, and capacity of
automated systems. See Appendix A to Part 37, Core Principle 14 of
Section 5h of the Act--System Safeguards (a) Guidance (1) Risk
analysis and oversight program (for SEFs); 17 CFR 38.1051(h) (for
DCMs); 17 CFR 49.24(j) (for SDRs). Each of the types of testing
addressed in this NPRM--vulnerability testing, penetration testing,
controls testing, security incident response plan testing, and
enterprise technology risk assessment--has been a generally
recognized best practice for system safeguards since before the
testing requirements of the Act and the current regulations were
adopted. The current system safeguards provisions of the CEA and the
Commission's regulations became effective in August 2012. Generally
accepted best practices called for each type of testing specified in
the proposed rule well before that date, as shown in the following
examples. Regarding all five types of testing, see, e.g., NIST SP
800-53A, Rev. 1, Guide for Assessing the Security Controls in
Federal Information Systems and Organizations (``NIST 800-53A
Rev.1''), at E1, F67, F230, F148, and F226, June 2010, available at
http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf. Regarding vulnerability testing, see, e.g., NIST SP
800-53A Rev. 1, at F67, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf; and NIST SP 800-115, Technical Guide to Information
Security Testing and Assessment, at 5-2, September 2008, available
at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf
. Regarding penetration testing, see, e.g., NIST Special Publication
(``SP'') 800-53A, Rev. 1, at E1, June 2010, available at: http://csc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf; and NIST 800-115, at 4-4, September 2008, available at:
http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
Regarding controls testing, see, e.g., NIST 800-53A, Rev. 1, at 13
and Appendix F1, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf.
Regarding security incident response plan testing, see, e.g., NIST
800-53A, Rev. 1, at F148, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf. Regarding enterprise technology risk assessment, see,
e.g., NIST 800-53A, Rev.1, at F226, June 2010, available at http://csrc.nist.gov/publications/nistpubs/800-53A-rev1/sp800-53A-rev1-final.pdf.
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To assist the Commission in its understanding of the current system
safeguard practices at DCMs and SDRs, Commission staff collected some
preliminary information from some DCMs and SDRs regarding their current
costs associated with conducting vulnerability testing, external and
internal penetration testing, controls testing, and enterprise
technology risk assessments (``DMO Preliminary Survey'').\292\ Some of
the cost estimates provided by the DCMs and SDRs included estimates at
the parent company level of the DCM and SDR as the entities were unable
to apportion the actual costs to a particular entity within their
corporate structure, within which entities may share the same automated
systems and system safeguard programs. In some cases, apportioning
costs could be further complicated by sharing of system safeguards
among DCMs, SEFs, SDRs, or DCOs. Therefore, in the data collected for
the DMO Preliminary Survey, it is difficult in some cases to
distinguish between the system safeguard-related costs of DCMs, SEFs,
SDRs, and DCOs. In light of the above factors, the cost estimates
discussed below are simple cost averages of the affected entities'
estimates, without regard to the type of entity.\293\ The data from the
DMO Preliminary Survey, information received by Commission staff in
administering the Commission's system safeguard program,\294\ and
information the Commission received during the CFTC Roundtable on March
18, 2015, are reflected below in the Commission's effort to estimate
the costs and benefits of the proposal.
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\292\ The Commission notes that the DCMs and SDRs that provided
the information for the DMO Preliminary Survey requested
confidential treatment. Additionally, because the Commission's cost
estimates are only based on preliminary data from some DCMs and
SDRs, the Commission is including questions throughout the
consideration of costs and benefits section for commenters to
provide the Commission with specific cost estimates regarding the
proposed rules.
\293\ By definition, averages are meant to serve only as a
reference point; the Commission understands that due to the nature
of the proposed requirements in relation to the current practices at
a covered DCM or an SDR, some entities may go above the average
while others may stay below.
\294\ Commission staff conduct system safeguard examinations
(``SSEs'') to evaluate DCMs' compliance with Core Principle 20
(System Safeguards) and Commission regulations Sec. Sec. 38.1050
and 38.1051. See 17 CFR 38.1050 and 38.1051. With respect to SDRs,
Commission staff conduct SSEs to evaluate SDRs' compliance with
Commission regulation Sec. 49.24. See 17 CFR 49.24.
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As noted above, and discussed more fully below, the Commission
believes that to the extent that the proposal will impose additional
costs, such costs will primarily impact covered DCMs (as defined) and
SDRs as a result of the minimum testing frequency and independent
contractor requirements.\295\ The Commission expects that the costs and
benefits may vary somewhat among the covered DCMs and SDRs. In this
same regard, the Commission notes that some covered DCMs and SDRs are
larger or more complex than others, and the proposed requirements may
impact covered DCMs and SDRs differently depending on their size and
the complexity of their systems.\296\ The Commission recognizes that it
is not possible to precisely estimate the additional costs for covered
DCMs and SDRs that may be incurred as a result of this rulemaking, as
the actual costs will be dependent on the operations and staffing of
the particular covered DCM and SDR, and to some degree, the manner in
which they choose to implement compliance with the proposed new
requirements. The Commission is sensitive to the economic effects of
the proposed regulations, including costs and benefits. Accordingly,
the Commission seeks comment on the costs and benefits associated with
the proposed regulations, including, where possible, quantitative data.
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\295\ The Commission believes that the proposed requirement in
Sec. Sec. 38.1051(c), 37.1041(c), and 49.24(d) that would require
all DCMs (covered and non-covered), SEFs, and SDRs to update BC-DR
plans and emergency procedures no less frequently than annually will
impose new costs relative to the current requirements. Additionally,
the proposed provisions that would make it mandatory for such
entities to follow best practices, ensure tester independence, and
coordinate BC-DR plans will also impose new costs relative to the
current requirements. The Commission also expects that all DCMs will
incur additional costs as a result of proposed requirement in Sec.
38.1051(n) for the reporting of annual trading volume to the
Commission.
\296\ Based on information obtained from the DMO Preliminary
Survey and the Commission's system safeguard compliance program, the
Commission understands that most covered DCMs and SDRs currently
conduct system safeguard testing at the proposed minimum frequency
for most of the five tests in the proposal. Additionally, the
Commission understands that most covered DCMs and SDRs currently
engage independent contractors for the testing required by the
proposal.
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While certain costs are amenable to quantification, other costs are
not easily estimated, such as the costs to the public or market
participants in the event of a cybersecurity incident at a DCM, SEF, or
SDR. The public interest is served by these critical infrastructures
performing their functions. The Commission's proposed regulations are
intended to mitigate the frequency and severity of system security
breaches or functional failures, and therefore, provide an important if
unquantifiable benefit to the public interest. Although the benefits of
effective regulation are difficult to estimate in dollar terms, the
Commission believes that they are of equal importance in light of the
Commission's mandate to protect market participants and the public and
to promote market integrity.
The discussion of costs and benefits that follows begins with a
summary of each proposed regulation and a consideration, where
appropriate, of the corresponding costs and benefits. At the conclusion
of this discussion, the Commission considers the costs and benefits of
the proposed regulations collectively in light of the five factors set
forth in section 15(a) of the CEA.
3. Categories of Risk Analysis and Oversight: Sections 38.1051(a),
37.1401(a), and 49.24(b)
a. Summary of Proposed Rules
As discussed above in Section I.B., the proposed rules would, among
other things, add enterprise risk management and governance to the list
of required categories of system safeguards-related risk analysis and
oversight.
[[Page 80166]]
b. Costs and Benefits
As discussed in the preamble, the Commission believes that
enterprise risk management and governance is implicit in the
Commission's existing system safeguard regulations, which already
require each DCM, SEF, and SDR to maintain a program of risk analysis
and oversight with respect to system safeguards.\297\ The proposed
rules would make enterprise risk management and governance an
explicitly listed category for the sake of clarity. The Commission
believes that this clarification will not impose any new costs for
DCMs, SEFs, and SDRs.
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\297\ 17 CFR 38.1050(a) (for DCMs); 17 CFR 37.1400(a) (for
SEFs); and 17 CFR 49.24(a)(1) (for SDRs).
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4. Requirements to Follow Best Practices, Ensure Testing Independence,
and Coordinate BC-DR Plans: Sections for Best Practices--38.1051(b);
37.1401(b); and Sec. 49.24(c). Sections for Tester Independence--
38.1051(h)(2)(iv), (3)(i)(C), (3)(ii)(B), (4)(iii), (5)(iv), and
(6)(ii); 37.1401(h)(2)(i), (3)(i)(A), (4)(i), (5)(iii), and (6)(i); and
49.24(j)(2)(iii), (3)(i)(B), (4)(ii), (5)(iv), and (6)(ii). Sections
for BC-DR Plans--38.1051(i); Sec. 37.1401(i); and Sec. 49.24(k)
a. Summary of Proposed Rules
As discussed above in Section I.C., the proposed rules would make
the existing provisions with respect to following best practices,
ensuring tester independence, and coordinating BC-DR plans mandatory
for DCMs, SEFs, and SDRs.
b. Costs
As discussed in the preamble, the Commission's existing rules for
DCMs and SDRs and its guidance for SEFs provide that such entities
should follow best practices in addressing the categories which their
programs of risk analysis and oversight are required to include.\298\
They provide that such entities should ensure that their system
safeguards testing, whether conducted by contractors or employees, is
conducted by independent professionals (persons not responsible for
development or operation of the systems or capabilities being
tested).\299\ They further provide that such entities should coordinate
their BC-DR plans with the BC-DR plans of market participants and
essential service providers.\300\ In light of the language in the
proposed rules that would make these provisions mandatory, the proposed
rules will impose new costs relative to the current requirements.
However, the Commission does not have quantification or estimation of
these potential costs.
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\298\ See Sec. 38.1051(b) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (1) Risk analysis and oversight program (for SEFs); Sec.
49.24(c) (for SDRs).
\299\ See Sec. 38.1051(h) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (2) Testing (for SEFs); Sec. 49.24(j) (for SDRs).
\300\ See Sec. 38.1051(i) (for DCMs); Appendix A to Part 37,
Core Principle 14 of Section 5h of the Act--System Safeguards (a)
Guidance (3) Coordination (for SEFs); Sec. 49.24(k) (for SDRs).
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c. Benefits
Making the provisions mandatory will align the system safeguards
rules for DCMs, SEFs, and SDRs with the Commission's system safeguards
rules for DCOs, which already contain mandatory provisions in these
respects. The Commission believes that in today's cybersecurity threat
environment, following generally accepted standards and best practices,
ensuring tester independence, and coordinating BC-DR plans
appropriately are essential to adequate system safeguards and cyber
resiliency for DCMs, SEFs, and SDRs. The Commission also believes that
clarity concerning necessary requirements in these respects will
benefit DCMs, SEFs, and SDRs, their market participants and customers,
and the public interest.
d. Request for Comments
The Commission requests comment on the potential costs and benefits
associated with the proposed provisions that would make it mandatory
for DCMs, SEFs, and SDRs to follow best practices, ensure tester
independence, and coordinate BC-DR plans, including, where possible,
quantitative data.
5. Updating of Business Continuity-Disaster Recovery Plans and
Emergency Procedures: Sections 38.1051(c), 37.1401(c), and 49.24(d).
a. Summary of Proposed Rules
As discussed above in Section I.D., the proposed rules would
require a DCM, SEF, or SDR to update its BC-DR plan and emergency
procedures at a frequency determined by an appropriate risk analysis,
but at a minimum no less frequently than annually.
b. Costs
The Commission's existing rules provide that DCMs, SEFs, and SDRs
must maintain BC-DR plans and emergency procedures, but do not specify
a frequency in which such plans and procedures must be updated.\301\
The proposed rules will impose new costs relative to the requirements
of the current rules.\302\ However, the Commission does not have
quantification or estimation of these potential costs.
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\301\ Commission regulations Sec. Sec. 38.1051(c) (for DCMs),
37.1401(b) (for SEFs), and 49.24(d) (for SDRs); 17 CFR 38.1051(c);
17 CFR 37.1401(b); 17 CFR 49.24(d).
\302\ The Commission understands from conducting its oversight
of DCMs, SEFs, and SDRs that many of these entities currently update
their respective BC-DR plans and emergency procedures at least
annually.
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c. Benefits
The Commission notes that updating BC-DR plans and emergency
procedures at least annually is a generally accepted best practice, as
it follows NIST and other standards. These standards highlight the
importance of updating such plans and procedures at least annually to
help enable the organization to better prepare for cyber security
incidents. Specifically, the NIST standards provide that once an
organization has developed a BC-DR plan, ``the organization should
implement the plan and review it at least annually to ensure the
organization is following the roadmap for maturing the capability and
fulfilling their [sic] goals for incident response.'' \303\
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\303\ NIST SP 800-53 Rev. 4, Physical and Environmental
Protection (PE) control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
FFIEC, Operations IT Examination Handbook, at 15-18, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Operations.pdf.
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d. Request for Comments
The Commission requests comment on the potential costs and benefits
associated with complying with proposed regulations Sec. Sec.
38.1051(c), 37.1401(c), and 49.24(d), including, where possible,
quantitative data.
6. Required system safeguards-related books and records obligations:
Sections 38.1051(g), 37.1041(g), and 49.24(i)
a. Summary of Proposed Rules
As discussed above in Section I.E., proposed Sec. Sec. 38.1051(g),
37.1401(g), and 49.24(i) would require a DCM, SEF, or SDR, in
accordance with Commission regulation Sec. 1.31,\304\ to provide the
Commission with the following system safeguards-related books and
records promptly upon request of any
[[Page 80167]]
Commission representative: (1) Current copies of the BC-DR plans and
other emergency procedures; (2) all assessments of the entity's
operational risks or system safeguards-related controls; (3) all
reports concerning system safeguards testing and assessment required by
this chapter, whether performed by independent contractors or employees
of the DCM, SEF, or SDR; and (4) all other books and records requested
by Commission staff in connection with Commission oversight of system
safeguards pursuant to the Act or Commission regulations, or in
connection with Commission maintenance of a current profile of the
entity's automated systems.
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\304\ Commission regulation Sec. 1.31(a)(1) specifically
provides that ``all books and records required to be kept by the Act
or by these regulations shall be kept for a period of five years
from the date thereof and shall be readily accessible during the
first 2 years of the 5-year period.'' The rule further provides that
``all such books and records shall be open to inspection by any
representative of the Commission or the United States Department of
Justice.'' See 17 CFR 1.31(a)(1).
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b. Costs
As discussed more fully above in the PRA section, all DCMs, SEFs,
and SDRs are already subject to system safeguard-related books and
records requirements. However, with the exception of BC-DR testing, the
records relating to a particular system safeguard test or assessment
are not explicitly addressed in the current rules. Therefore, the
Commission is proposing Sec. Sec. 38.1051(g), 37.1401(g), and 49.24(i)
to clarify the system safeguard recordkeeping and reporting
requirements for these entities. The Commission notes that the
pertinent recordkeeping and reporting requirements of proposed Sec.
38.1051(g) are contained in the provisions of current Commission
regulations Sec. Sec. 38.1051(g) and (h). The pertinent recordkeeping
and reporting requirements of proposed Sec. 37.1041(g) are contained
in the provisions of current Sec. Sec. 37.1041(f) and (g). In
addition, the pertinent recordkeeping and reporting requirements of
proposed Sec. 49.24(i) are contained in the provisions of current
Commission regulations Sec. Sec. 49.24(i) and (j). Because the
production of system-safeguard records is already required by the
current rules, the Commission believes that the proposed rules would
not impose any additional costs on DCMs, SEFs, and SDRs.
c. Benefits
The recordkeeping requirements for DCMs, SEFs, and SDRs allow the
Commission to fulfill its oversight role and effectively monitor a
DCM's, SEF's, or SDR's system safeguards program and compliance with
the Act and the Commission's regulations. In addition, such
requirements enable Commission staff to perform efficient examinations
of DCMs, SEFs, and SDRs, and increase the likelihood that Commission
staff may identify conduct inconsistent with the requirements. Further,
making all system safeguard-related documents available to the
Commission upon request informs the Commission of areas of potential
weaknesses, or persistent or recurring problems, across the DCMs, SEFs,
and SDRs.
7. Definitions: Sections 38.1051(h)(1), 37.1041(h)(1), and 49.24(j)(1)
a. Summary of Proposed Rules
Proposed Sec. Sec. 38.105(h)(1), 37.1041(h)(1), and 49.24(j)(1)
would include definitions for the following terms: (1) Controls; (2)
controls testing; (3) enterprise technology risk assessment; (4)
external penetration testing; (5) internal penetration testing; (6) key
controls; (7) security incident; (8) security incident response plan;
(9) security incident response plan testing; and (10) vulnerability
testing. Additionally, Sec. 38.105(h)(1) would include the definition
for covered designated contract market.
b. Costs and Benefits
The proposed definitions simply provide context to the specific
system safeguard tests and assessments that a DCM, SEF, or SDR would be
required to conduct on an ongoing basis. Accordingly, the costs and
benefits of these terms are attributable to the substantive testing
requirements and, therefore, are discussed in the cost and benefit
considerations related to the rules describing the requirements for
each test.
8. Vulnerability Testing: Sections 38.1051(h)(2), 37.1401(h)(2), and
49.24(j)(2)
a. Summary of Proposed Rules
As discussed above in Section I.F.3., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1) would define
vulnerability testing as testing of a DCM's, SEF's, or SDR's automated
systems to determine what information may be discoverable through a
reconnaissance analysis of those systems and what vulnerabilities may
be present on those systems. The proposed rules would require a DCM,
SEF, or SDR to conduct vulnerability testing that is sufficient to
satisfy the testing scope requirements in proposed Sec. Sec.
38.1051(k), 37.1401(k), and 49.24(l), at a frequency determined by an
appropriate risk analysis. Vulnerability testing would include
automated vulnerability scanning, with some such scanning to be
conducted on an authenticated basis (e.g., using log-in credentials).
Where scanning is conducted on an unauthenticated basis, implementation
of effective compensating controls would be required. At a minimum,
covered DCMs and SDRs would be required to conduct vulnerability
testing no less frequently than quarterly. Covered DCMs and SDRs would
be required to engage independent contractors to perform two of the
required quarterly tests each year, although the entity could have
other vulnerability testing conducted by employees not responsible for
development or operation of the systems or capabilities being tested.
b. Costs
1. Vulnerability Testing Requirement for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\305\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\306\
---------------------------------------------------------------------------
\305\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\306\ Id.
---------------------------------------------------------------------------
The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\307\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting vulnerability testing. The proposed rules clarify
the existing testing requirements by specifying vulnerability testing
as a necessary component. The Commission believes that this has always
been the case.\308\ If compliance with the existing testing
requirements as clarified by the proposed rules results in costs to a
DCM, SEF, or SDR beyond those it already incurs in this connection, the
Commission believes that such additional costs would be attributable to
compliance with the
[[Page 80168]]
existing regulations and not to the proposed rules. Accordingly, the
Commission believes that this clarification will not impose any new
costs for DCMs, SEFs, and SDRs.
---------------------------------------------------------------------------
\307\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SDRs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
\308\ See supra note 291.
---------------------------------------------------------------------------
2. Minimum Vulnerability Testing Frequency Requirements for Covered
DCMs and SDRs
As discussed above, the proposed rules would require covered DCMs
and SDRs to conduct vulnerability testing no less frequently than
quarterly.\309\ The current rules require DCMs and SDRs to conduct
regular, periodic, objective testing of their automated systems.\310\
Accordingly, the proposed rules will impose new costs relative to the
requirements of the current rules.\311\ The Commission notes that the
proposed frequency comports with industry best practices.\312\
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\309\ While the existing system safeguards rules provide that
all DCMs must conduct testing to ensure the reliability, security,
and capacity of their automated systems, and thus to conduct
vulnerability testing, external and internal penetration testing,
controls testing, enterprise technology risk assessments, and to
have and test security incident response plans in a way governed by
appropriate risk analysis, the proposed rules would avoid applying
the addition minimum frequency requirements to non-covered DCMs in
order to give smaller markets with fewer resources somewhat more
flexibility regarding the testing they must conduct. The Commission
believes that such a reduced burden for smaller DCMs may be
appropriate, in light of the fact that they will still be required
to conduct such testing and assessments, and to have security
incident response plans, pursuant to the existing system safeguards
rules for DCMs.
\310\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\311\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that most covered DCMs and SDRs
currently conduct vulnerability testing at the proposed frequency.
\312\ PCI DSS standards, 11.2, at 94, available at https://www.pcisecuritystandards.org/security_standards/index.php.
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3. Independent Contractor Requirement for Covered DCMs and SDRs
As discussed above, the proposed rules would require at least two
of the required quarterly vulnerability tests each year to be conducted
by an independent contractor. Current regulations Sec. Sec. 38.1051(h)
and 49.24(j) provide that testing of automated systems should be
conducted by qualified, independent professionals.\313\ The qualified
independent professionals may be independent contractors or employees
of a DCM or SDR as long as they are not responsible for development or
operation of the systems or capabilities being tested. Accordingly, the
proposed independent contractor requirement will impose new costs
relative to the requirements of the current rules.\314\ The Commission
notes that best practices also support the use of independent
contractors to conduct vulnerability testing.\315\
---------------------------------------------------------------------------
\313\ Id.
\314\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that some covered DCMs and SDRs
may not be engaging independent contractors at all, or may not be
engaging such contractors at a frequency that would satisfy proposed
frequency requirement.
\315\ See CFTC Roundtable, at 88-89; NIST SP 800-115, at 6-6,
available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf; FFIEC, Information Security IT Examination Handbook,
at 81, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf; PCI-DSS Version 3.1,
Requirement 11, Regularly test security systems and processes, at
94-96, available at https://www.pcisecuritystandards.org/security_standards/index.php.
---------------------------------------------------------------------------
4. Cost Estimates for Covered DCMs and SDRs
The Commission's preliminary cost estimate for vulnerability
testing, based on data collected from the DMO Preliminary Survey,
suggests that on average, a covered DCM or SDR currently spends
approximately $3,495,000 annually.\316\ The data also suggests that
with respect to the entities that currently use independent contractors
to conduct vulnerability testing, a covered DCM or SDR spends
approximately $71,500 to hire an independent contractor to conduct one
vulnerability test annually and $143,000 to conduct two tests annually.
In providing these estimates, the Commission recognizes that the actual
costs may vary widely as a result of many factors, including the size
of the organization, the complexity of the automated systems, and the
scope of the test. Where a covered DCM or SDR does not currently use an
independent contractor to conduct any vulnerability tests, the
Commission expects that such entities may also incur some additional
minor costs as a result of the need to establish and implement internal
policies and procedures that are reasonably designed to address the
workflow associated with the test. For example, the Commission expects
that such policies and procedures may include communication and
cooperation between the entity and independent contractor,
communication and cooperation between the entity's legal, business,
technology, and compliance departments, appropriate authorization to
remediate vulnerabilities identified by the independent contractor,
implementation of the measures to address such vulnerabilities, and
verification that these measures are effective and appropriate.
Moreover, although the Commission believes that all covered DCMs and
SDRs have substantial policies and procedures in place for
vulnerability testing conducted by internal staff, the Commission
acknowledges that affected entities who do not already use independent
contractors for some vulnerability testing may need to dedicate time to
reviewing and revising their existing policies and procedures to ensure
that they are sufficient in the context of the proposed requirements.
The Commission believes that any costs incurred by the entities as
result of such review would be minor.
---------------------------------------------------------------------------
\316\ During the CFTC Roundtable, one of the participants noted
the difficulty in providing cost estimates for vulnerability and
penetration testing, but emphasized that vulnerability testing is
generally automated while penetration testing is usually more
manual. See CFTC Roundtable, at 98.
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c. Benefits
Vulnerability testing identifies, ranks, and reports
vulnerabilities that, if exploited, may result in an intentional or
unintentional compromise of a system.\317\ The complex analysis and
plan preparation that a DCM, SEF, or SDR undertakes to complete
vulnerability testing, including designing and implementing changes to
existing plans, are likely to contribute to a better ex ante
understanding by the DCM's, SEF's, or SDR's management of the
challenges the entity would face in a cyber threat scenario, and thus
better preparation to meet those challenges. This improved preparation
in turn helps reduce the possibility of market disruptions. Regularly
conducting vulnerability tests enables a DCM, SEF, or SDR to mitigate
the impact that a cyber threat to, or a disruption of, a DCM's, SEF's,
or SDR's operations would have on market participants, parties required
by the Act or Commission regulations to report swaps data to SDRs, and,
more broadly, the stability of the U.S. financial markets. Accordingly,
the Commission believes that such testing strengthens a DCM's, SEF's,
and SDR's automated systems, thereby protecting market participants and
swaps data reporting parties from a disruption in services.
---------------------------------------------------------------------------
\317\ See Security Standards Council, PCI-DSS Information
Supplement: Penetration Testing Guidance, p. 3, available at:
https://www.pcisecuritystandards.org/documents/Penetration_Testing_Guidance_March_2015.pdf.
---------------------------------------------------------------------------
With respect to the proposed minimum frequency requirement for
covered DCMs and SDRs, the Commission believes that such entities have
a significant incentive to conduct vulnerability testing at least
quarterly in order to identify the latest threats to the
[[Page 80169]]
organization and reduce the likelihood that attackers could exploit
vulnerabilities. Best practices support the requirement that
vulnerability testing be conducted no less frequently than quarterly.
For example, PCI DSS standards provide that entities should run
internal and external network vulnerability scans ``at least
quarterly,'' as well as after any significant network changes, new
system component installations, firewall modifications, or product
upgrades.\318\ Moreover, the Commission believes that the proposed
frequency requirement will give additional clarity to covered DCMs and
SDRs concerning what is required of them in this respect.
---------------------------------------------------------------------------
\318\ PCI DSS, Requirement 11.2 Regularly test security systems
and processes, at 94, available at https://www.pcisecuritystandards.org/security_standards/index.php.
---------------------------------------------------------------------------
As noted above, the proposed rules would also require covered DCMs
and SDRs to engage independent contractors to conduct two of the
required quarterly vulnerability tests each year, while providing
covered DCMs and SDRs with the flexibility to conduct other
vulnerability testing using employees not responsible for development
or operation of the systems or capabilities being tested. Consistent
with the views shared by the panelists at the CFTC Roundtable, the
Commission believes there are important benefits when a testing program
includes both testing by independent contractors and testing by entity
employees not responsible for building or operating the system being
tested. One participant in the CFTC Roundtable noted, ``[t]here are
advantages to both, but neither can stand alone.'' \319\ Much testing
needs to happen internally, but much also needs to be conducted from
the viewpoint of an outsider, particularly where testing against the
possible tactics or techniques of a particular threat actor is
concerned.\320\ With respect to testing conducted by entity employees,
one benefit is that internal vulnerability testing and scanning can
utilize viewpoints that the outside world would not have, based on
intimate knowledge of the entity's network and systems.\321\ An
additional benefit provided by independent contractor testing comes
from the outsider's different perspective, and his or her ability to
look for things that entity employees may not have contemplated during
the design or operation of the system involved.\322\ The Commission
also notes that best practices support having testing conducted by both
independent contractors and entity employees.\323\ Accordingly, the
Commission believes the proposed rules are appropriate and would strike
the appropriate balance between both entity employees and independent
contractors conducting the vulnerability tests.
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\319\ CFTC Roundtable, at 88.
\320\ Id. at 88-89.
\321\ Id. at 177.
\322\ Id. at 171.
\323\ See NIST SP 800-115, at 6-6, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf; FFIEC,
Information Security IT Examination Handbook, at 81, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf; ISACA, COBIT 5, MEA02.05,
Ensure that assurance providers are independent and qualified,
available at https://cobitonline.isaca.org/.
---------------------------------------------------------------------------
d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of vulnerability testing, including the minimum
testing frequency and independent contractor requirement, and the
extent to which the proposed rules clarify the standard. The Commission
particularly solicits comments concerning the need for vulnerability
testing and the associated costs and benefits, from DCMs, SEFs, and
SDRs, from futures and swap market participants, from best practices
and standards organizations, from cybersecurity service providers and
cybersecurity experts in both the private and public sectors, and from
other financial regulators.
9. External Penetration Testing: Sections 38.1051(h)(3)(i),
37.1401(h)(3)(i), and 49.24(j)(3)(i)
a. Summary of Proposed Rules
As discussed above in Section I.F.4., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1) would define external
penetration testing as attempts to penetrate a DCM's, SEF's or SDR's
automated systems from outside the systems' boundaries to identify and
exploit vulnerabilities. The proposed rules would require a DCM, SEF,
or SDR to conduct external penetration testing that is sufficient to
satisfy the scope requirements in proposed Sec. Sec. 38.1051(k),
37.1401(k), and 49.24(l), at a frequency determined by an appropriate
risk analysis. At a minimum, covered DCMs and SDRs would be required to
conduct external penetration testing no less frequently than annually.
Covered DCMs and SDRs would also be required to engage independent
contractors to perform the required annual external penetration test,
although the entity could have other external penetration testing
conducted by employees not responsible for development or operation of
the systems or capabilities being tested.
b. Costs
1. External Penetration Testing for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\324\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\325\
---------------------------------------------------------------------------
\324\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\325\ Id.
---------------------------------------------------------------------------
The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\326\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting external penetration testing.
---------------------------------------------------------------------------
\326\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SEFs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
---------------------------------------------------------------------------
The proposed rules clarify the existing testing requirements by
specifying external penetration testing as a necessary component. The
Commission believes it has always been the case.\327\ If compliance
with the existing testing requirements as clarified by the proposed
rules results in costs to a DCM, SEF, or SDR beyond those it already
incurs in this connection, the Commission believes that such additional
costs would be attributable to compliance with the existing regulations
and not to the proposed rules. Accordingly, the Commission believes
that this clarification will not impose any new costs for DCMs, SEFs,
and SDRs.
---------------------------------------------------------------------------
\327\ See supra note 291.
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[[Page 80170]]
2. Minimum External Penetration Testing Frequency Requirements for
Covered DCMs and SDRs
As discussed above, the proposed rules would require covered DCMs
and SDRs to conduct external penetration testing no less frequently
than annually. The current rules require DCMs and SDRs to conduct
regular, periodic, objective testing of their automated systems.\328\
Therefore, the proposed rules will impose new costs relative to the
requirements of the current rules.\329\ The Commission notes that the
proposed frequency requirement is consistent with industry best
practices.\330\
---------------------------------------------------------------------------
\328\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\329\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that most covered DCMs and SDRs
currently conduct external penetration testing at the proposed
frequency.
\330\ NIST, SP 800-115, Technical Guide to Information Security
Testing and Assessment, Section 5.2.2, at 5-5, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
---------------------------------------------------------------------------
3. Independent Contractor Requirement for Covered DCMs and SDRs
As discussed above, the proposed rules would require the annual
external penetration test to be conducted by an independent contractor.
Current regulations Sec. Sec. 38.1051(h) and 49.24(j) provide that
testing of automated systems should be conducted by qualified,
independent professionals.\331\ The qualified independent professionals
may be independent contractors or employees of a DCM or SDR as long as
they are not responsible for development or operation of the systems or
capabilities being tested. Therefore, the proposed rules will impose
new costs relative to the requirements of the current rules.\332\ The
Commission notes that best practices support using independent
contractors to conduct external penetration testing.\333\
---------------------------------------------------------------------------
\331\ Id.
\332\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that most covered DCMs and SDRs
currently engage independent contractors to conduct external
penetration testing.
\333\ Council on CyberSecurity, CSC 20-1, available at http://www.counciloncybersecurity.org/critical-controls/.
---------------------------------------------------------------------------
4. Cost Estimates for Covered DCMs and SDRs
Based on the cost information from the DMO Preliminary Survey, the
Commission estimates that the average cost for a covered DCM or SDR to
conduct external penetration testing annually is approximately
$244,625. The Commission recognizes that the actual costs may vary
widely as a result of many factors, including the size of the
organization, the complexity of the automated systems, and the scope of
the test. Where a covered DCM or SDR does not currently use an
independent contractor to conduct the external penetration test, the
Commission expects that such entities may also incur some additional
minor costs as a result of the need to establish and implement internal
policies and procedures that are reasonably designed to address the
workflow associated with the test. For example, the Commission expects
that such policies and procedures may include communication and
cooperation between the entity and independent contractor,
communication and cooperation between the entity's legal, business,
technology, and compliance departments, appropriate authorization to
remediate vulnerabilities identified by the independent contractor,
implementation of the measures to address such vulnerabilities, and
verification that these measures are effective and appropriate. The
Commission acknowledges that covered DCMs and SDRs that currently do
not use independent contractors for the external penetration test may
need to dedicate time to reviewing and revising their existing policies
and procedures to ensure that they are sufficient in the context of the
proposed requirements. The Commission believes that any costs incurred
by the entities as result of such review would be minor.
c. Benefits
The benefits for external penetration testing, including the
minimum testing frequency and independent contractors, are discussed
below in conjunction with the benefits for internal penetration
testing.
d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of external penetration testing, including the
minimum testing frequency and independent contractor requirement. The
Commission particularly solicits comments concerning the need for
external penetration testing and the associated costs and benefits,
from DCMs, SEFs, and SDRs, from futures and swap market participants,
from best practices and standards organizations, from cybersecurity
service providers and cybersecurity experts in both the private and
public sectors, and from other financial regulators.
10. Internal Penetration Testing: Sections 38.1051(h)(3)(ii),
37.1401(h)(3)(ii), and 49.24(j)(3)(ii)
a. Summary of Proposed Rules
As discussed above in Section I.F.4., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1) would define internal
penetration testing as attempts to penetrate a DCM's, SEF's, or SDR's
automated systems from inside the systems' boundaries to identify and
exploit vulnerabilities. The proposed rules would require a DCM, SEF,
or SDR to conduct internal penetration testing that is sufficient to
satisfy the scope requirements in proposed Sec. Sec. 38.1051(k),
37.1401(k), and 49.24(l), at a frequency determined by an appropriate
risk analysis. At a minimum, covered DCMs and SDRs would be required to
conduct the internal penetration testing no less frequently than
annually. The DCM or SDR may engage independent contractors to conduct
the test, or the entity may use employees of the DCM or SDR who are not
responsible for development or operation of the systems or capabilities
being tested.
b. Costs
1. Internal Penetration Testing for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\334\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\335\
---------------------------------------------------------------------------
\334\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\335\ Id.
---------------------------------------------------------------------------
The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\336\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially
[[Page 80171]]
impossible for a DCM, SEF, or SDR to fulfill its existing obligation to
conduct testing sufficient to ensure the reliability, security, and
capacity of its automated systems without conducting internal
penetration testing. The proposed rules clarify the existing testing
requirements by specifying internal penetration testing as a necessary
component. The Commission believes that this has always been the
case.\337\ If compliance with the existing testing requirements as
clarified in the proposed rules results in costs to a DCM, SEF, or SDR
beyond those it already incurs in this connection, the Commission
believes that such additional costs would be attributable to compliance
with the existing regulations and not to the proposed rules.
Accordingly, the Commission believes that this clarification will not
impose any new costs on DCMs, SEFs, and SDRs.
---------------------------------------------------------------------------
\336\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SDRs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
\337\ See supra note 291.
---------------------------------------------------------------------------
2. Minimum Internal Penetration Testing Frequency Requirements for
Covered DCMs and SDRs
As discussed above, the proposed rules would require covered DCMs
and SDRs to conduct internal penetration testing no less frequently
than annually. The current rules require DCMs and SDRs to conduct
regular, periodic, objective testing of their automated systems.\338\
Therefore, the proposed rules will impose new costs relative to the
requirements of the current rules.\339\ The Commission notes that the
proposed frequency is consistent with industry best practices.\340\
---------------------------------------------------------------------------
\338\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\339\ Based on the information from the DMO Preliminary Survey,
the Commission understands that most covered DCMs and SDRs currently
conduct internal penetration testing at the proposed frequency.
\340\ PCI DSS standards, at 96-97, available at https://www.pcisecuritystandards.org/security_standards/index.php.
---------------------------------------------------------------------------
3. Cost Estimates for Covered DCMs and SDRs
Based on the data from the DMO Preliminary Survey, the Commission
estimates that the current average cost for a covered DCM or SDR
conducting internal penetration testing is approximately $410,625
annually. In providing these estimates, the Commission recognizes that
the actual costs may vary significantly as a result of numerous
factors, including the size of the organization, the complexity of the
automated systems, and the scope of the test. Additionally, the
Commission recognizes that the affected entities may undertake an
evaluation, on an initial and ongoing basis, regarding internal
policies and procedures that may need to be revised. If such an
evaluation is required, the Commission believes that any incremental
costs would be minor.
c. Benefits
External penetration testing benefits DCMs, SEFs, and SDRs by
identifying the extent to which its systems can be compromised before
an attack is identified.\341\ Such testing is conducted outside a
DCM's, SEF's, or SDR's security perimeter to help reveal
vulnerabilities that could be exploited by an external attacker.
Accordingly, the Commission believes that the external penetration
testing strengthens DCMs', SEFs', and SDRs' systems, thereby protecting
not only the DCMs, SEFs, and SDRs, but also market participants and
parties required by the Act or Commission regulations to report swaps
data to the SDRs from a disruption in services, which could potentially
disrupt the functioning of the broader financial markets.
---------------------------------------------------------------------------
\341\ FFIEC, Information Security IT Examination Handbook, at
81, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
---------------------------------------------------------------------------
By attempting to penetrate a DCM's, SEF's or SDR's automated
systems from inside the systems' boundaries, internal penetration tests
allow the respective entities to assess system vulnerabilities from
attackers that penetrate their perimeter defenses and from trusted
insiders, such as former employees and contractors. In addition to
being an industry best practice, the Commission believes that annual
internal penetration testing is important because such potential
attacks by trusted insiders generally pose a unique and substantial
threat due to their more sophisticated understanding of a DCM's, SEF's,
or SDR's systems. Moreover, ``[a]n advanced persistent attack may
involve an outsider gaining a progressively greater foothold in a
firm's environment, effectively becoming an insider in the process. For
this reason, it is important to perform penetration testing against
both external and internal interfaces and systems.'' \342\ As discussed
above in the costs section, the proposed rules would address the
required minimum frequency for covered DCMs and SDRs in performing
external and internal penetration testing. Best practices support
external and internal penetration testing on at least an annual basis.
NIST calls for at least annual penetration testing of an organization's
network and systems.\343\ The FFIEC calls for penetration testing of
high risk systems at least annually, and for quarterly testing and
verification of the efficacy of firewall and access control
defenses.\344\ Data security standards for the payment card industry
provide that entities should perform both external and internal
penetration testing ``at least annually,'' as well as after any
significant network changes, new system component installations,
firewall modifications, or product upgrades.\345\ The Commission
believes the specified frequency levels would increase the likelihood
that the affected entities will be adequately protected against the
level of cybersecurity threat now affecting the financial sector. The
Commission also notes that identifying and fixing vulnerabilities that
could be exploited by adversaries would likely be a more cost effective
alternative to dealing with a successful cyber attack.
---------------------------------------------------------------------------
\342\ FINRA, Report on Cybersecurity Practices (February 2015),
at 22, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
\343\ NIST, SP 800-115, Technical Guide to Information Security
Testing and Assessment, Section 5.2.2, at 5-5, available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf.
\344\ FFIEC, Information Security IT Examination Handbook, at
82, available at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.
\345\ PCI DSS, Requirements 11.3.1 and 11.3.2., available at
https://www.pcisecuritystandards.org/documents/PCI_DSS_v3-1.pdf.
---------------------------------------------------------------------------
With respect to external penetration testing, the proposed
requirement for annual testing to be performed by independent
contractors is intended to ensure that covered DCM and SDR programs of
risk analysis and oversight with respect to system safeguards include
the benefits provided when independent contractors perform such
testing. The Commission shares the view expressed by participants in
the CFTC Roundtable that vendor testing has particular value with
respect to external penetration testing because the test comes from the
viewpoint of an outsider and against the current tactics, techniques,
and threat vectors of current threat actors as revealed by current
threat intelligence.
d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of internal penetration testing, including the
minimum testing frequency requirement. The Commission particularly
solicits comments concerning the need for internal penetration testing
and the associated costs and benefits, from DCMs, SEFs, and SDRs, from
futures and swap market participants, from best
[[Page 80172]]
practices and standards organizations, from cybersecurity service
providers and cybersecurity experts in both the private and public
sectors, and from other financial regulators.
11. Controls Testing: Sections 38.1051(h)(4), 37.1401(h)(4), and
49.24(j)(4)
a. Summary of Proposed Rules
As discussed above in Section I.F.5., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1) and 49.24(j)(1) would define controls
testing as an assessment of the DCM's, SEF's, or SDR's market controls
to determine whether such controls are implemented correctly, are
operating as intended, and are enabling the entity to meet the system
safeguard requirements established by the respective chapters. The
proposed rules would require a DCM, SEF, or an SDR to conduct controls
testing that is sufficient to satisfy the scope requirements in
proposed Sec. Sec. 38.1051(k), 37.1401(k), and 49.24(l), at a
frequency determined by an appropriate risk analysis. At a minimum,
covered DCMs and SDRs would be required to conduct the controls testing
no less frequently than every two years. The testing may be conducted
on a rolling basis over the course of the minimum two-year period or
over a minimum period determined by an appropriate risk analysis. The
covered DCM and SDR must engage independent contractors to test and
assess the key controls in the entity's risk analysis and oversight, no
less frequently than every two years. The entities may conduct any
other controls testing required by Sec. Sec. 38.1051(h)(4) and
49.24(j)(4) by using either independent contractors or employees of the
covered DCM or SDR who are not responsible for the development or
operations of the systems or capabilities being tested.
b. Costs
1. Controls Testing for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\346\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\347\
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\346\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\347\ Id.
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The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\348\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting controls testing.
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\348\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SDRs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
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The proposed rules clarify the existing testing requirements by
specifying controls testing as a necessary component. The Commission
believes that this has always been the case.\349\ If compliance with
the existing testing requirements as clarified by the proposed rules
imposes costs to a DCM, SEF, or SDR beyond those it already incurs in
this connection, the Commission believes that such additional costs
would be attributable to compliance with the existing regulations and
not to the proposed rules. Accordingly, the Commission believes that
this clarification will not impose any new costs for DCMs, SEFs, or
SDRs.
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\349\ See supra note 291.
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2. Minimum Controls Testing Frequency Requirements for Covered DCMs and
SDRs
As discussed above, the proposed rules would require a covered DCM
or SDR to test each control included in its program of system
safeguards-related risk analysis and oversight no less frequently than
every two years. The proposed rules would also permit such testing to
be conducted on a rolling basis over the course of the period
determined by appropriate risk analysis. The current rules require DCMs
and SDRs to conduct regular, periodic, objective testing of their
automated systems.\350\ Therefore, the proposed rules will impose new
costs relative to the requirements of the current rules.\351\ The
Commission notes that testing on a rolling basis is consistent with
generally accepted best practices.\352\
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\350\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\351\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that some covered DCMs and SDRs
currently conduct controls testing at the proposed frequency level.
\352\ NIST SP 800-53A Rev. 4, at 17-18, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
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3. Independent Contractor Requirement for Covered DCMs and SDRs
As discussed above, the proposed rules would require a DCM or SDR
to engage an independent contractor to test and assess the key controls
no less frequently than every two years. Current regulations Sec. Sec.
38.1051(h) and 49.24(j) provide that testing of automated systems
should be conducted by qualified, independent professionals.\353\ The
qualified independent professionals may be independent contractors or
employees of a DCM or SDR as long as they are not responsible for
development or operation of the systems or capabilities being tested.
Accordingly, the proposed rules will impose new costs relative to the
requirements of the current rules.\354\ The Commission notes that best
practices support independent testing of key controls.\355\
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\353\ Id.
\354\ Based on the information collected in the DMO Preliminary
Survey, the Commission understands that most covered DCMs and SDRs
currently engage independent contractors to conduct key controls
testing.
\355\ NIST SP 800-53 Rev. 4, control CA-2 Security Assessments,
Control Enhancements 1, Security Assessments: Independent Assessors,
available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
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4. Cost Estimates for Covered DCMs and SDRs
Based on the information from the DMO Preliminary Survey, the
Commission estimates that the current average cost for a covered DCM or
an SDR conducting controls testing is approximately $2,724,000
annually.\356\ Consistent with all of the system safeguard-related
tests required in the proposal, the Commission recognizes that the
actual costs may vary widely as a result of numerous factors including,
the size of the organization, the complexity of the automated systems,
and the scope of the test. With respect to a covered DCM or SDR that
does not currently use an independent contractor to conduct key
controls testing, the
[[Page 80173]]
Commission expects that these entities may incur some minor costs as a
result of the need to establish and implement internal policies and
procedures that are reasonably designed to address the workflow
associated with the test. For example, the Commission expects that such
policies and procedures may include the communication and cooperation
between the entity and independent contractor, communication and
cooperation between the entity's legal, business, technology, and
compliance departments, appropriate authorization to remediate
deficiencies identified by the independent contractor, implementation
of the measures to address such deficiencies, and verification that
these measures are effective and appropriate. While the Commission
believes that all covered DCMs and SDRs have substantial policies and
procedures in place for controls testing conducted by internal staff,
the Commission acknowledges that the affected entities may dedicate
time in reviewing and revising their existing policies and procedures
to ensure that they are sufficient in the context of the proposed
requirements. The Commission believes that any costs incurred by the
entities as result of such review would be minor.
---------------------------------------------------------------------------
\356\ One of the Cybersecurity Roundtable participants noted
that with respect to the costs for a properly scoped program of
controls testing there is no single answer to this question because
it depends on the number of an organization's applications and the
amount of money spent across the industry varies greatly. See CFTC
Roundtable, at 258-59.
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c. Benefits
Controls testing is essential in determining risk to an
organization's operations and assets, to individuals, and to other
organizations, and to the nation resulting from the use of the
organization's systems.\357\ In other words, controls testing is vital
because it allows firms to be nimble in preventing, detecting, or
recovering from an attack.\358\ The Commission believes that the
complex analysis and plan preparation that a DCM, SEF, and SDR
undertakes with respect to controls testing, including designing and
implementing changes to existing plans, likely contributes to a better
ex ante understanding by the DCM's, SEF's, and SDR's management of the
challenges the entity would face in a cyber threat scenario, and thus
better preparation to meet those challenges. This improved preparation
would help reduce the possibility of market disruptions and financial
losses to market participants. Moreover, regularly conducting controls
testing enables a DCM, SEF, and SDR to mitigate the impact that a cyber
threat to, or a disruption of, a DCM's, SEF's, or SDR's operations
would have on market participants, entities required by the Act or
Commission regulations to report swaps data to SDRs, and, more broadly,
the stability of the U.S. financial markets. Accordingly, the
Commission believes that such testing strengthens a DCM's, SEF's, and
SDR's automated systems, thereby protecting market participants and
swaps data reporting parties from a disruption in services.
---------------------------------------------------------------------------
\357\ NIST SP 800-53A, Assessing Security and Privacy Controls
in Federal Information Systems and Organizations, rev. 4 (``NIST SP
800-53A''), p. 3, available at: http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
\358\ CFTC Roundtable, at 43-44.
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As noted above in the costs section, the proposed rules would
require a covered DCM or SDR to test each control included in its
program of system safeguards-related risk analysis oversight no less
frequently than every two years. The Commission believes that it is
essential for each control to be tested at least this often in order to
confirm the continuing adequacy of the entity's system safeguards in
today's cybersecurity threat environment. Additionally, the frequency
requirement would benefit the affected entities by providing additional
clarity concerning what is required of them in this respect. The
proposed rules would also permit such testing to be conducted on a
rolling basis over the course of the period determined by appropriate
risk analysis. The rolling basis provision is designed to give a
covered DCM or SDR flexibility concerning which controls are tested
during the required minimum frequency period. This flexibility is
intended to reduce burdens associated with testing every control to the
extent possible while still ensuring the needed minimum testing
frequency. The Commission also notes that testing on a rolling basis is
consistent with industry best practices.\359\
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\359\ NIST SP 800-53A Rev. 4, at 17-18, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf.
---------------------------------------------------------------------------
Additionally, as noted above, the proposed rules would require a
covered DCM or SDR to engage independent contractors to test and assess
each of the entity's key controls no less frequently than every two
years. The entities would have the flexibility to conduct any other
controls testing by either independent contractors or entity employees
not responsible for development or operation of the systems or
capabilities being tested. Independent testing of key controls is
consistent with best practices. Significantly, the NIST Standards note
the important benefits of independent testing and call for controls
testing to include assessment by independent assessors, free from
actual or perceived conflicts of interest, in order to validate the
completeness, accuracy, integrity, and reliability of test
results.\360\ Accordingly, in light of best practices and the current
cyber threat level to the financial sector, the Commission believes the
independent contractor requirement would provide these substantial
benefits.
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\360\ NIST SP 800-53 Rev. 4, supra note 195.
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d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of controls testing, including the minimum testing
frequency and independent contractor requirement. The Commission
particularly solicits comments concerning the need for controls testing
and the associated costs and benefits, from DCMs, SEFs, and SDRs, from
futures and swap market participants, from best practices and standards
organizations, from cybersecurity service providers and cybersecurity
experts in both the private and public sectors, and from other
financial regulators.
12. Security Incident Response Plan Testing: Sections 38.1051(h)(5),
37.1401(h)(5), and 49.24(j)(5)
a. Summary of Proposed Rules
As discussed above in Section I.F.6., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1) would define security
incident response plan testing as testing of a DCM's, SEF's, or SDR's
security incident response plan to determine the plan's effectiveness,
identifying its potential weaknesses or deficiencies, enabling regular
plan updating and improvement, and maintaining organizational
preparedness and resiliency with respect to security incidents. In
addition, methods of conducting security incident response plan testing
may include, but are not limited to, checklist completion, walk-through
or table-top exercises, simulations, and comprehensive exercises. The
DCM's, SEF's, or SDR's security incident response would be required to
include, without limitation, the entity's definition and classification
of security incidents, its policies and procedures for reporting
security incidents and for internal and external communication and
information sharing regarding security incidents, and the hand-off and
escalation points in its security incident response process. The
entities may coordinate its security incident response plan testing
with other testing required by this section or with testing of its
other BC-DR and crisis management plans. The proposed rules would
[[Page 80174]]
require covered DCMs and SDRs to conduct such testing at a frequency
determined by an appropriate risk analysis, but at a minimum no less
frequently than annually.
b. Costs
1. Security Incident Response Plan Testing for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\361\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\362\
---------------------------------------------------------------------------
\361\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\362\ Id.
---------------------------------------------------------------------------
The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\363\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting security incident response plan testing.
---------------------------------------------------------------------------
\363\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SDRs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
---------------------------------------------------------------------------
The proposed rules clarify the existing testing requirements by
specifying security incident response plan testing as a necessary
component. The Commission believes that this has always been the
case.\364\ If compliance with the existing testing requirements as
clarified by the proposed rules results in costs to a DCM, SEF, or SDR
beyond those it already incurs in this connection, the Commission
believes that such additional costs would be attributable to compliance
with the existing regulations and not to the proposed rules.
Accordingly, the Commission believes that this clarification will not
impose any new costs for DCMs, SEFs, and SDRs.
---------------------------------------------------------------------------
\364\ See supra note 291.
---------------------------------------------------------------------------
2. Minimum Security Incident Response Testing Frequency Requirements
for Covered DCMs and SDRs
As discussed above, the proposed rules would require covered DCMs
and SDRs to conduct security incident response plan testing at least
annually. The current rules require DCMs and SDRs to conduct regular,
periodic, objective testing of their automated systems.\365\
Accordingly, the proposed rules will impose new costs relative to the
requirements of the current rules.\366\ The Commission notes that the
proposed frequency requirement is consistent with industry best
practices.\367\
---------------------------------------------------------------------------
\365\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\366\ Based on the Commission's experience in administering the
system safeguard compliance program, the Commission believes that
many covered DCMs and SDRs currently conduct security incident
response plan testing at the proposed frequency.
\367\ NIST SP 800-84, Guide to Test, Training, and Exercise
Programs for IT Plans and Capabilities, at 2-4 (citing NIST SP 800-
53, Rev. 4, Security and Privacy Controls for Federal Information
Systems and Organizations).
---------------------------------------------------------------------------
3. Estimated Costs for Covered DCMs and SDRs
At present, the Commission cannot quantify or estimate the current
costs associated with security incident response plan testing at a
covered DCM or SDR. Nevertheless, to the extent that the proposed rules
would impose additional costs on covered DCMs and SDRs, the Commission
believes that such costs may vary widely as result of numerous factors,
including the size of the organization, the complexity of the automated
systems, and the scope of the test. Additional costs incurred by the
affected entities could include time in reviewing and revising existing
policies and procedures, initially and on an ongoing basis, concerning
security incident response testing to ensure that they are sufficient
in the context of the proposed requirements. In such cases, the
Commission believes that any costs would be minimal.
c. Benefits
Security incident response plans, and adequate testing of such
plans, reduce the damage caused by breaches of a DCM's, SEF's, or SDR's
network security. Network security breaches are highly likely to have a
substantial negative impact on a DCM's, SEF's, or SDR's operations.
They can increase costs through lost productivity, lost current and
future market participation or swap data reporting, compliance
penalties, and damage to the DCM's, SEF's, or SDR's reputation and
brand. Moreover, the longer a cyber intrusion continues, the more its
impact may be compounded.
The proposed rules would provide clarity to covered DCMs and SDRs
concerning the minimum testing frequency. The Commission believes the
proposed frequency requirement would increase the likelihood that these
entities could mitigate the duration and impact in the event of a
security incident by making them better prepared for such an incident.
Therefore, a covered DCM or SDR may also be better positioned to reduce
any potential impacts to automated system operation, reliability,
security, or capacity, or the availability, confidentiality, or
integrity of its futures and swaps data.
d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of the proposed security incident response plan
testing requirement, including the minimum testing frequency
requirement. The Commission also seeks comments on all aspects of the
proposed security incident response plan testing requirement. The
Commission particularly solicits comments concerning both the need for
security incident response plans and plan testing and the associated
costs and benefits, from DCMs, SEFs, and SDRs, from futures and swap
market participants, from best practices and standards organizations,
from cybersecurity service providers and cybersecurity experts in both
the private and public sectors, and from other financial regulators.
13. Enterprise Technology Risk Assessment: Sections Sec. Sec.
38.1051(h)(6), 37.1401(h)(6), and 49.24(j)(6)
a. Summary of Proposed Rules
As discussed above in Section I.F.7., proposed Sec. Sec.
38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1) would define ETRA as an
assessment that includes an analysis of threats and vulnerabilities in
the context of mitigating controls. In addition, the assessment
identifies, estimates, and prioritizes risks to the entity's operations
or assets, or to market participants, individuals, or other entities,
resulting from impairment of the confidentiality, integrity, and
availability of data and information or the reliability, security, or
capacity of automated systems. The proposed rules
[[Page 80175]]
would require a covered DCM or SDR to conduct an ETRA at a frequency
determined by an appropriate risk analysis, but at a minimum no less
frequently than annually. The proposed rules would provide that the
assessment may be conducted by independent contractors, or employees of
the DCM or SDR who are not responsible for development or operation of
the systems or capabilities being tested.
b. Costs
1. ETRAs for All DCMs, SEFs, and SDRs
As discussed in the preamble, the Act requires each DCM, SEF, and
SDR to develop and maintain a program of system safeguards-related risk
analysis and oversight to identify and minimize sources of operational
risk.\368\ The Act mandates that in this connection each DCM, SEF, and
SDR must develop and maintain automated systems that are reliable,
secure, and have adequate scalable capacity, and must ensure system
reliability, security, and capacity through appropriate controls and
procedures.\369\
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\368\ CEA section 5(d)(20) (for DCMs); CEA section 5h(f)(14)
(for SEFs); CEA section 21(f)(4)(A) and 17 CFR 49.24(a) (for SDRs).
\369\ Id.
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The Commission's existing system safeguards rules for DCMs, SEFs,
and SDRs mandate that, in order to achieve these statutory
requirements, each DCM, SEF, and SDR must conduct testing and review
sufficient to ensure that its automated systems are reliable, secure,
and have adequate scalable capacity.\370\ The Commission believes, as
the generally accepted standards and best practices noted in this NPRM
make clear, that it would be essentially impossible for a DCM, SEF, or
SDR to fulfill its existing obligation to conduct testing sufficient to
ensure the reliability, security, and capacity of its automated systems
without conducting ETRAs.
---------------------------------------------------------------------------
\370\ Commission regulations Sec. Sec. 38.1051(h) (for DCMs),
37.1401(g) (for SEFs), and 49.24(j) (for SDRs). 17 CFR 38.1051(h);
17 CFR 37.1401(g); and 17 CFR 49.24(j).
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The proposed rules clarify the existing testing requirements by
specifying ETRAs as a necessary component.\371\ The Commission believes
that this has always been the case. If compliance with the existing
testing requirements as clarified by the proposed rules results in
costs to a DCM, SEF, or SDR beyond those it already incurs in this
connection, the Commission believes that such additional costs would be
attributable to compliance with the existing regulations and not to the
proposed rules. Accordingly, the Commission believes that this
clarification will not impose any new costs for DCMs, SEFs, and SDRs.
---------------------------------------------------------------------------
\371\ See supra note 291.
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2. Minimum ETRA Frequency Requirements for Covered DCMs and SDRs
As discussed above, the proposed rules would require covered DCMs
and SDRs to conduct ETRAs at least annually. The current rules require
DCMs and SDRs to conduct regular, periodic, objective testing of their
automated systems.\372\ Therefore, the proposed rules will impose new
costs relative to the requirements of the current rules.\373\ The
Commission notes that the proposed frequency requirement comports with
industry best practices.\374\
---------------------------------------------------------------------------
\372\ See Commission regulations Sec. Sec. 38.1051(h) (for
DCMs) and 49.24(j) (for SDRs); 17 CFR 38.1051(h); 17 CFR 49.24(j).
\373\ Based on the information from the DMO Preliminary Survey,
the Commission understands that most covered DCMs and SDRs currently
conduct ETRAs at the proposed frequency.
\374\ FINRA, Report on Cybersecurity Practices (February 2015),
at 14, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
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3. Estimated Costs for Covered DCMs and SDRs
Based on the information from the DMO Preliminary Survey, the
Commission estimates that the current average cost for covered DCMs and
SDRs conducting the assessment is approximately $1,347,950 annually.
However, the Commission notes that actual costs may vary widely among
the affected entities due to the size of the organization, the
complexity of the automated systems, and the scope of the assessment.
Additionally, the Commission recognizes that the affected entities may
undertake an evaluation, on an initial and ongoing basis, regarding
internal policies and procedures that may need to be revised. If such
an evaluation is required, the Commission believes that any incremental
costs would be minor.
c. Benefits
The Commission believes that ETRAs are an essential component of a
comprehensive system safeguard program. ETRAs can be viewed as a
strategic approach through which DCMs, SEFs, and SDRs identify risks
and aligns its systems goals accordingly. The Commission believes that
these requirements are necessary to support a strong risk management
framework for DCMs, SEFs, and SDRs, thereby helping to protect DCMs,
SEFs, and SDRs, market participants, parties required by the Act or
Commission regulations to report swaps data to SDRs, and helping to
mitigate the risk of market disruptions.
The proposed rules would provide clarity to covered DCMs and SDRs
concerning the minimum assessment frequency. Best practices support
annual or more frequent assessment of technology and cybersecurity
risk. For example, FINRA states that firms conducting appropriate risk
assessment do so either annually or on an ongoing basis throughout the
year, in either case culminating in an annual risk assessment
report.\375\ The Commission believes the proposed frequency
requirements would better position the entities to identify, estimate,
and prioritize the risks facing them in today's cybersecurity threat
environment.
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\375\ FINRA, Report on Cybersecurity Practices (February 2015),
at 14, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf.
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d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of the enterprise technology risk assessment
requirement, including the minimum testing frequency requirement. The
Commission particularly solicits comments concerning the need for
enterprise technology risk assessments and the associated costs and
benefits, from DCMs, SEFs, and SDRs, from futures and swap market
participants, from best practices and standards organizations, from
cybersecurity service providers and cybersecurity experts in both the
private and public sectors, and from other financial regulators.
14. Scope for Testing and Assessment: Sections 38.1051(k), 37.1401(k),
and 49.24(l)
a. Summary of Proposed Rules
As discussed above in Section I.G.1., proposed Sec. Sec.
38.1051(k), 37.1401(k), and 49.24(l) would require that the scope for
all system safeguards testing and assessment required by this chapter
must be broad enough to include all testing of automated systems,
networks, and controls necessary to identify any vulnerability which,
if triggered, could enable an intruder or unauthorized user or insider
to: (1) Interfere with the entity's operations or with fulfillment of
the entity's statutory and regulatory responsibilities; (2) impair or
degrade the reliability, security, or adequate
[[Page 80176]]
scalable capacity of the entity's automated systems; (3) add to,
delete, augment, modify, exfiltrate, or compromise the integrity of any
data related to the entity's regulated activities; or (4) undertake any
other unauthorized action affecting the entity's regulated activities
or the hardware or software used in connection with those activities.
b. Costs and Benefits
The Commission believes that the costs and benefits associated with
the scope for testing and assessment are generally attributable to the
substantive testing requirements; therefore they are discussed in the
cost and benefit considerations related to the rules describing the
requirements for each test or assessment.
15. Internal Review of Test and Assessment Reports: Sections
38.1051(l), 37.1401(l), and 49.24(m)
a. Summary of Proposed Rules
As discussed above in Section I.G.2. proposed Sec. Sec.
38.1051(l), 37.1401(l), and 49.24(m) would require the senior
management and the Board of Directors of the DCM, SEF, or SDR to
receive and review reports setting forth the results of all testing and
assessment required by this section. In addition, the proposed rules
would require the DCM, SEF, or SDR to establish and follow appropriate
procedures for the remediation of issues identified through such
review, as provided in sections 38.1051(m), 37.1401(m), and 49.24(n)
(Remediation), and for evaluation of the effectiveness of testing and
assessment protocols.
b. Costs
As discussed in the preamble, the Commission proposes to clarify
the testing requirements by specifying and defining certain aspects of
DCM, SEF, and SDR risk analysis and oversight programs that are
necessary to fulfillment of the testing requirements and achievement of
their purposes. This clarification includes review of system safeguard
testing and assessments by senior management and the DCM's, SEF's, or
SDR's Board of Directors, which is recognized as best practice for
system safeguards.\376\ The Commission believes, as the generally
accepted standards and best practices noted in this NPRM make clear,
that it would be essentially impossible for a DCM, SEF, or SDR to
fulfill its existing obligation to conduct testing sufficient to ensure
the reliability, security, and capacity of its automated systems
without performing appropriate internal reporting and review of test
results.\377\ This has been true since before the testing requirements
of the Act and the current regulations were adopted.\378\ If compliance
with the existing testing requirements as clarified by the proposed
rules results in costs to a DCM, SEF, or SDR beyond those it already
incurs, the Commission believes that such additional costs would be
attributable to compliance with the existing regulations and not to the
proposed rules. Accordingly, the Commission believes that this
clarification will not impose any new costs for DCMs, SEFs, and SDRs.
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\376\ FINRA, Report on Cybersecurity Practices, February 2015,
at 7, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf; FFIEC,
Information Security IT Examination Handbook, at 5, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.; and NIST SP 800-53, Rev.
4, Program Management Control Family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\377\ See e.g., NIST SP 800-115, Technical Guide to Information
Security Testing and Assessment, at 6-10-6-12, September 2008,
available at http://csrc.nist.gov/publications/nistpubs/800-115/SP800-115.pdf; NIST SP 800-53A Rev. 4, at 10, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53Ar4.pdf;
FFIEC, Information Security IT Examination Handbook, at 5, available
at http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf; NIST SP 800-53 Rev. 4,
Program Management control family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf;
FINRA, Report on Cybersecurity Practices, February 2015, at 8,
available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf; FFIEC,
Audit IT Examination Handbook, Objective 6, at 5, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_Audit.pdf;
ISACA, COBIT 5, APO12, available at https://cobitonline.isaca.org/.
\378\ See supra note 246.
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c. Benefits
The Commission believes that internal reporting and review are an
essential component of a comprehensive and effective system safeguard
program. While senior management and the DCM's, SEF's, or SDR's board
of directors will have to devote resources to reviewing testing and
assessment reports, active supervision by senior management and the
board of directors promotes responsibility and accountability by
affording them greater opportunity to evaluate the effectiveness of the
testing and assessment protocols. Moreover, the attention by the board
of directors and senior management should help to promote a focus on
such reviews and issues, and enhance communication and coordination
regarding such reviews and issues among the business, technology,
legal, and compliance personnel of the DCM, SEF, and SDR. Active
supervision by senior management and the board of directors also
promotes a more efficient, effective, and reliable DCM and SDR risk
management and operating structure. Consequently, DCMs, SEFs, and SDRs
should be better positioned to strengthen the integrity, resiliency,
and availability of its automated systems.
d. Request for Comments
The Commission requests comment on any potential costs of proposed
Sec. Sec. 38.1051(l), 37.1401(l), and 49.24(m) on DCMs, SEFs, and
SDRs, including, where possible, quantitative data.
16. Remediation: Sections 38.1051(m), 37.1401(m), and 49.24(n)
a. Summary of Proposed Rules
As discussed above in Section I.G.3., proposed Sec. Sec.
38.1051(m), 37.1401(m), and 49.24(n) would require a DCM, SEF, or an
SDR to analyze the results of the testing and assessment required by
this section to identify all vulnerabilities and deficiencies in the
entity's systems. The DCM, SEF, or SDR would also be required to
remediate the vulnerabilities and deficiencies revealed by all testing
and assessment, to the full extent necessary to enable the entity to
fulfill the system safeguards requirements of this chapter, and to meet
all statutory and regulatory obligations in connection with its
regulated activities. The remediation must be timely in light of
appropriate risk analysis with respect to the risks presented by such
vulnerabilities and deficiencies.
b. Costs
As discussed in the preamble, the Commission proposes to clarify
the testing requirements by specifying and defining certain aspects of
DCM, SEF, and SDR risk analysis and oversight programs that are
necessary to fulfillment of the testing requirements and achievement of
their purposes. This clarification includes remediation. Remediation of
vulnerabilities and deficiencies revealed by cybersecurity testing is a
best practice and a fundamental purpose of such testing.\379\ The
Commission believes, as the generally accepted standards and best
practices noted in this NPRM make clear, that it would be essentially
impossible for a DCM, SEF, or SDR to
[[Page 80177]]
fulfill its existing obligation to conduct testing sufficient to ensure
the reliability, security, and capacity of its automated systems
without performing remediation.\380\ This has been true since before
the testing requirements of the Act and the current regulations were
adopted.\381\ If compliance with the existing testing requirements as
clarified by the proposed rules results in costs to a DCM, SEF, or SDR
beyond those it already incurs, the Commission believes that such
additional costs would be attributable to compliance with the existing
regulations and not to the proposed rules. Accordingly, the Commission
believes that this clarification will not impose any new costs for
DCMs, SEFs, and SDRs.
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\379\ FINRA, Report on Cybersecurity Practices, February 2015,
at 7, available at https://www.finra.org/sites/default/files/p602363%20Report%20on%20Cybersecurity%20Practices_0.pdf; FFIEC,
Information Security IT Examination Handbook, at 5, available at
http://ithandbook.ffiec.gov/ITBooklets/FFIEC_ITBooklet_InformationSecurity.pdf.; and NIST SP 800-53, Rev.
4, Program Management Control Family, available at http://nvlpubs.nist.gov/nistpubs/SpecialPublications/NIST.SP.800-53r4.pdf.
\380\ See supra note 377.
\381\ See supra note 246.
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c. Benefits
The Commission believes that effective remediation is a critical
component of a comprehensive and effective system safeguard program. As
discussed above, the Commission believes that the remediation of
vulnerabilities and deficiencies revealed by cybersecurity testing is
an industry best practice. Moreover, remediation may reduce the
frequency and severity of systems disruptions and breaches for the
DCMs, SEFs, and SDRs. In addition, remediation helps to ensure that the
entities dedicate appropriate resources to timely address system
safeguard-related deficiencies and would place an emphasis on
mitigating harm to market participants while promoting market
integrity. Without a timely remediation requirement, the impact of
vulnerabilities or deficiencies identified by the testing or assessment
could persist and have a detrimental effect on the futures and swaps
markets generally as well as market participants.
d. Request for Comments
As set out in more detail below in the Request for Comments
section, the Commission seeks additional information regarding the
costs and benefits of the remediation requirement. The Commission
particularly solicits comments concerning the need for remediation and
the associated costs and benefits, from DCMs, SEFs, and SDRs, from
futures and swap market participants, from best practices and standards
organizations, from cybersecurity service providers and cybersecurity
experts in both the private and public sectors, and from other
financial regulators.
17. Required Production of Annual Trading Volume: Section 38.1051(n)
a. Summary of Proposed Rule
Proposed Sec. 38.1051(n) would require all DCMs to provide to the
Commission for calendar year 2015, and each calendar year thereafter,
its annual total trading volume. This information would be required
within 30 calendar days of the effective date of the final version of
this rule, and for 2016 and subsequent years by January 31 of the
following calendar year.
b. Costs
As discussed above in the PRA section, the Commission believes that
all DCMs generally calculate their annual trading volume in the usual
course of business and many of the DCMs already publish this
information on their Web site. Therefore, the Commission believes that
any costs incurred by the DCMs as a result of proposed Sec. 38.1051(n)
would be minimal. The Commission estimates that each DCM would spend
approximately half an hour to prepare and file the trading volume
information with Commission at a cost of approximately $22.00
annually.\382\
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\382\ In arriving at a wage rate for the hourly costs imposed,
Commission staff used the National Industry-Specific Occupational
Employment and Wage Estimates, published in May (2014 Report). The
hourly rate for a Compliance Officer in the Securities and Commodity
Exchanges as published in the 2014 Report was $44.03 per hour.
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c. Benefits
As a result of the Commission's proposal to apply the enhanced
system safeguard requirements to DCMs whose annual trading volume in a
calendar year is five percent or more of the combined annual trading
volume of all DCMs regulated by Commission (i.e., covered DCMs), the
Commission believes that it is necessary to require all DCMs to provide
the Commission with annual trading volume information. Otherwise, the
Commission would be unable to accurately evaluate whether a particular
DCM would be subject to the proposal. As stated in the proposed rule,
the Commission will provide each DCM with its percentage of the
combined annual trading volume of all DCMs regulated by the Commission
for the preceding calendar year. Therefore, all DCMs will receive
certainty from the Commission regarding whether they must comply with
the enhanced system safeguard requirements. This requirement will
support more accurate application of the proposed rules.
18. Section 15(a) Factors
a. Protection of Market Participants and the Public
The Commission believes that the proposed rules should benefit the
futures and swaps markets by promoting more robust automated systems
and therefore fewer disruptions and market-wide closures, systems
compliance issues, and systems intrusions. Because automated systems
play a central and critical role in today's electronic financial market
environment, oversight of DCMs, SEFs, and SDRs with respect to
automated systems is an essential part of effective oversight of both
futures and swaps markets. In addition, providing the Commission with
reports concerning system safeguards testing and assessments required
by the proposed rules will facilitate the Commission's oversight of
futures and swaps markets, augment the Commission's efforts to monitor
systemic risk, and will further the protection of market participants
and the public by helping to ensure that automated systems are
available, reliable, secure, have adequate scalable capacity, and are
effectively overseen. As a result, the Commission also expects fewer
interruptions to the systems that directly support the respective
entities, including matching engines, regulatory and surveillance
systems, and the dissemination of market data, which should help ensure
compliance with the relevant statutory and regulatory obligations.
Moreover, market participants will benefit from systems that are secure
and able to protect their anonymity with respect to positions in the
marketplace and other aspects of their personally-identifiable
information.
b. Efficiency, Competitiveness, and Financial Integrity of the Markets
A DCM or SEF that has system safeguard policies and procedures in
place, including the timely remediation of vulnerabilities and
deficiencies in light of appropriate risk analysis, will promote
overall market confidence and could lead to greater market efficiency,
competitiveness, and perceptions of financial integrity. Safeguarding
the reliability, security, and capacity of DCM, SEF, and SDR computer
systems are essential to mitigation of system risk for the nation's
financial sector as a whole. A comprehensive testing program capable of
identifying operational risks will enhance the efficiency, and
financial integrity of the markets by increasing the likelihood that
trading remains uninterrupted and transactional data and positions are
not
[[Page 80178]]
lost.\383\ A DCM or SEF with such a program also promotes confidence in
the markets, and encourages liquidity and stability. Moreover, the
ability of a DCM or SEF to recover and resume trading promptly in the
event of a disruption of their operations, or an SDR to recover and
resume its swap data recordkeeping and reporting function, is highly
important to the U.S. economy and ensuring the resiliency of the
automated systems is a critical part of the Commission's mission.
Additionally, and because SDRs hold data needed by financial regulators
from multiple jurisdictions, safeguarding such systems will be
essential to mitigation of systemic risk world-wide. Notice to the
Commission concerning the results of system safeguard tests performed
by the DCMs, SEFs, and SDRs will assist the Commission's oversight and
its ability to assess systemic risk levels. It would present
unacceptable risks to the U.S. financial system if futures and swaps
markets that comprise critical components of the world financial
system, and SDRs that hold data concerning swaps, were to become
unavailable for an extended period of time for any reason, and adequate
system safeguards are essential to the mitigation of such risks.
---------------------------------------------------------------------------
\383\ During the CFTC Roundtable, one of the participants noted
that ``if data is disclosed about activity in the markets, that is a
survivable event from a resiliency perspective, but if we don't know
who owns what and what their positions are, then there are no
markets.'' CFTC Roundtable, at 71.
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c. Price Discovery
Any interruption in trading on a DCM or SEF can distort the price
discovery process. Similarly, any interruption in the operations of an
SDR will hamper the Commission's ability to examine potential price
discrepancies and other trading inconsistencies in the swaps market.
Therefore, reliable functioning computer systems and networks are
essential in protecting the price discovery process. The Commission
believes that the proposed rules will reduce the incidence and severity
of automated system security breaches and functional failures. In
addition, the Commission views the proposed rules as likely to
facilitate the price discovery process by mitigating the risk of
operational market interruptions from disjoining forces of supply and
demand. The presence of thorough system safeguards testing signals to
the market that a DCM or SEF is a financially sound place to trade,
thus attracting greater liquidity which leads to more accurate price
discovery.
d. Sound Risk Management Practices
The proposed rules will benefit the risk management practices of
both the regulated entities and the participants who use the facilities
of those entities. Participants who use DCMs or SEFs to manage
commercial price risks should benefit from markets that behave in an
orderly and controlled fashion. If prices move in an uncontrolled
fashion due to a cybersecurity incident, those who manage risk may be
forced to exit the market as a result of unwarranted margin calls or
deterioration of their capital. In addition, those who want to enter
the market to manage risk may only be able to do so at prices that do
not reflect the actual supply and demand fundamentals due to the
effects of a cybersecurity incident. Relatedly, participants may have
greater confidence in their ability to unwind positions because market
disruptions would be less common. With respect to SDRs, the Commission
believes that the ability of participants in the swaps market to report
swap transactions to an SDR without interruption will serve to improve
regulators' ability to monitor risk management practices through better
knowledge of open positions and SDR services related to various trade,
collateral, and risk management practices. The Commission notes
regulator access (both domestic and foreign) to the data held by an SDR
is essential for regulators to be able to monitor the swap market and
certain participants relating to systemic risk.
e. Other Public Interest Considerations
The American economy and the American public depend upon the
availability of reliable and secure markets for price discovery,
hedging, and speculation. Ensuring the adequate safeguarding and the
reliability, security, and capacity of the systems supporting these
market functions is a core focus in the Commission's role in monitoring
and assessing the level of systemic risk, and is central to its
fulfillment of oversight responsibilities. As one CFTC Roundtable
panelist explained, ``if the futures system doesn't work many other
things don't work, and it's a wholly interconnected system. And the
more we can make all the parts more secure the more resilient it's
going to be overall.'' \384\
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\384\ CFTC Roundtable, at 28.
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III. Requests for Comment
A. Comments Regarding Notice of Proposed Rulemaking
The Commission requests comments from the public on all aspects of
this NPRM. This specifically includes comments on all aspects of the
Commission's preliminary consideration of costs and benefits associated
with the Proposal, and all aspects of the Commission's preliminary
consideration of the five factors that the Commission is required to
consider under section 15(a) of the CEA. The Commission particularly
solicits comments concerning all aspects of the Proposal and its
associated costs and benefits from DCMs, SEFs, and SDRs, from futures
and swap market participants, from best practices and standards
organizations, from cybersecurity providers and cybersecurity experts
in both the private and public sectors, and from other financial
regulators.
The questions below relate to areas that the Commission believes
may be relevant. In addressing these questions or any other aspects of
the Proposal and Commission's assessments, commenters are encouraged to
submit any data or other information that they may have quantifying or
qualifying the costs and benefits of the Proposal. Comments may be
submitted directly to the Office of Information and Regulatory Affairs,
by fax at (202) 395-6566 or by email at [email protected].
Please provide the Commission with a copy of submitted comments so that
all comments can be summarized and addressed in the final rule
preamble. Refer to the ADDRESSES section of this NPRM for comment
submission instructions to the Commission. A copy of the supporting
statements for the collections of information discussed above may be
obtained by visiting http://RegInfo.gov. OMB is required to make a
decision concerning the collection of information between 30 and 60
days after publication of this document in the Federal Register.
Therefore, a comment is best assured of having its full effect if OMB
receives it within 30 days of publication.
1. Do commenters agree with the Commission's analysis of the costs
and benefits of each provision in the Proposal? Please explain why or
why not.
2. Do commenters believe that there are additional benefits or
costs that could be quantified or otherwise estimated? If so, please
identify those categories and, if possible, provide specific estimates
or data.
3. Do commenters agree that the definitions of the categories of
risk analysis and oversight to be addressed by DCM, SEF, and SDR
programs of system safeguards-related risk analysis and oversight
included in the Proposal are appropriate, sufficiently clear, and
[[Page 80179]]
reflective of generally accepted best practices and standards? Please
identify any suggested clarifications or changes respecting these
definitions.
4. Do commenters agree that following generally accepted standards
and best practices, ensuring tester independence, and coordinating BC-
DR plans appropriately are essential to adequate system safeguards and
cyber resiliency for DCMs, SEFs, and SDRs, and that the current rule
provisions and guidance providing that DCMs, SEFs, and SDRs should
comply in these regards should be changed to require mandatory
compliance? Please identify, and quantify insofar as possible, any new
costs that DCMs, SEFs, or SDRs would incur due to making such
compliance mandatory.
5. Do commenters agree that the definitions of terms included in
the proposed Sec. Sec. 38.1051(h)(1), 37.1401(h)(1), and 49.24(j)(1)
are appropriate, sufficiently clear, and reflective of generally
accepted best practices and standards? Please identify any suggested
clarifications or changes respecting these definitions.
6. Do commenters agree that the types of system safeguards testing
specified in the Proposal, including vulnerability testing, external
and internal penetration testing, controls testing, security incident
response plan testing, and enterprise technology risk assessment, are
appropriate and necessary in today's cybersecurity environment? Please
explain why or why not. Also, do commenters agree that each testing
type is appropriately and adequately addressed by the Proposal? Please
explain why or why not, and identify any suggested clarifications or
changes in this connection.
7. Are the types of cybersecurity and system safeguards testing
included in the Proposal sufficient in the aggregate to provide the
cybersecurity and system safeguards protections needed by DCMs, SEFs,
and SDRs to enable them to fulfill their statutory and regulatory
requirements in the current cybersecurity environment? Please explain
why or why not. Also, should the Commission consider requiring other
types of cybersecurity and system safeguards testing not included in
the Proposal? If so, please identify the other types of testing that
should be required, and if possible provide information concerning the
costs and benefits that would be involved.
8. The existing system safeguards rules for DCMs, SEFs, and SDRs
require testing sufficient to ensure automated system reliability,
security, and capacity. The Proposal clarifies these testing
requirements by specifying and defining five types of system safeguards
testing essential to fulfilling these existing requirements. Do
commenters agree that this clarification will not impose new costs on
DCMs, SEFs, and SDRs? Commenters who disagree are asked to specify
which types of testing called for in the Proposal DCMs, SEFs, or SDRs
do not currently conduct, and what new costs such entities would incur
as the result of the clarification of required testing types.
9. Do commenters agree that the minimum testing frequency
requirements included in the Proposal for each of the types of system
safeguards testing are appropriate in today's cybersecurity
environment? Please explain why or why not. In your response, please be
specific with respect to the types of testing that you suggest should
be conducted either more or less frequently than specified in the
Proposal, and indicate the potential costs and benefits associated with
each such modification.
10. Do commenters agree with the requirements included in the
Proposal for certain testing to be conducted by independent
contractors? Please explain why or why not. If not, please address what
testing you believe should be conducted by independent contractors, and
the frequency of independent contractor testing that should be
required. Please also indicate the potential costs and benefits
associated with each such modification.
11. What are the benefits of requiring certain tests to be
conducted by independent contractors? In your response, please be
specific with respect to which tests should be conducted by independent
contractors and, if possible, provide specific estimates or data for
the costs of each test.
12. For covered DCMs and SDRs, please identify and explain how any
of the proposed testing requirements respecting minimum testing
frequency and use of independent contractors differ from the current
practice at the entity (e.g., the entity does not currently use
independent contractors for vulnerability testing, whereas the proposed
rule would require the entity to engage independent contractors to
conduct two of the required quarterly tests each year). In cases where
the Proposal differs from current practice, please provide specific
estimates of any additional costs that the entity would incur to comply
with the proposal.
13. Do commenters agree that the testing scope requirements
provided in the Proposal are appropriate, sufficiently clear,
reflective of generally accepted best practices and standards, and
sufficient to enable DCMs, SEFs, and SDRs to fulfill their statutory
and regulatory responsibilities? Please identify any suggested
clarifications or changes respecting these provisions.
14. Do commenters agree that the internal reporting and review
requirements provided in the Proposal are appropriate, sufficiently
clear, reflective of generally accepted best practices and standards,
and sufficient to enable DCMs, SEFs, and SDRs to fulfill their
statutory and regulatory responsibilities? Please identify any
suggested clarifications or changes respecting these provisions.
15. Do commenters agree that the remediation requirements provided
in the Proposal are appropriate, sufficiently clear, reflective of
generally accepted best practices and standards, and sufficient to
enable DCMs, SEFs, and SDRs to fulfill their statutory and regulatory
responsibilities? Please identify any suggested clarifications or
changes respecting these provisions.
16. Do commenters believe that there are any costs or benefits from
the Proposal that could be quantified or monetized that are unique to a
DCM, SEF, or an SDR? If so, please identify those costs or benefits,
and if possible provide specific estimates or data.
17. Are there methods by which the Commission could reduce the
costs imposed by the Proposal, while still maintaining the system
safeguards for DCMs, SEFs, and SDRs that are required by law and are
appropriate to today's cybersecurity threat environment? If so, please
explain.
18. Are there any unintended consequences that would result from
the Proposal? If so, please describe them, and explain how the
unintended consequences would impact any of the costs or benefits
associated with the Proposal, or would impact DCM, SEF, or SDR
operations.
19. Does the Proposal appropriately describe the potential impacts
on the protection of market participants and the public, efficiency and
competition, financial integrity of the futures markets and price
discovery, sound risk management practices, and other public interest
considerations? If not, please provide specific examples.
20. Do commenters believe that there are reasonable alternatives to
any aspect of the Proposal? In the response, please specifically
describe such alternatives and identify their potential costs and
benefits relative to the proposal. Please also describe the potential
impacts of the alternatives on protection of market participants and
the public, efficiency and competition, financial integrity of the
futures markets and price discovery,
[[Page 80180]]
sound risk management practices, and other public interest
considerations.
B. Comments Regarding Advance Notice of Proposed Rulemaking Concerning
Covered SEFs
The Commission requests comments from the public on all aspects of
the ANPRM included herein concerning possible future minimum testing
frequency requirements and independent contractor testing requirements
for covered SEFs. The Commission particularly solicits comments
concerning all aspects of the ANPRM from DCMs, SEFs, and SDRs, from
futures and swap market participants, from best practices and standards
organizations, from cybersecurity providers and cybersecurity experts
in both the private and public sectors, and from other financial
regulators.
The questions below relate to areas that the Commission believes
may be relevant. In addressing these questions or any other aspects of
the ANPRM concerning possible future minimum testing frequency
requirements and independent contractor testing requirements for
covered SEFs, commenters are encouraged to submit any data or other
information that they may have quantifying or qualifying costs and
benefits that could be related to the ANPRM. Comments may be submitted
directly to the Office of Information and Regulatory Affairs, by fax at
(202) 395-6566 or by email at [email protected]. Please
provide the Commission with a copy of submitted comments so that all
comments can be summarized and addressed in the final rule preamble.
Refer to the ADDRESSES section of this NPRM for comment submission
instructions to the Commission.
The Commission is considering whether the minimum testing frequency
and independent contractor testing requirements which this NPRM would
apply to covered DCMs and SDRs should be applied, via a future NPRM, to
the most systemically important SEFs, which such a future NPRM would
define as ``covered SEFs.'' The Commission requests comments on all
aspects of this question, including possible related costs and
benefits. In addition, commenters are asked to address the particular
aspects of this subject included in the questions below.
1. Should the minimum testing frequency and independent contractor
testing requirements be applied, via a future NPRM, to the most
systemically important SEFs, or to all SEFs, or should such
requirements not be applied to SEFs at this time?
2. Given the nature of the swap market, would it be more
appropriate to define ``covered SEF'' in terms of the annual total
notional value of all swaps traded on or pursuant to the rules of a
SEF, as compared with the annual total notional value of all swaps
traded on or pursuant to the rules of all SEFs regulated by the
Commission? Or would it be more appropriate to define ``covered SEF''
in terms of the annual total number of swaps traded on or pursuant to
the rules of a SEF, as compared with the annual total number of swaps
traded on all SEFs regulated by the Commission?
3. If defining ``covered SEF'' in terms of notional value is more
appropriate, how should ``notional value'' be defined?
4. If defining ``covered SEF'' in terms of notional value is more
appropriate, what percentage share of the annual total notional value
of all swaps traded on all SEFs regulated by the Commission should be
used to define ``covered SEF''?
5. If defining ``covered SEF'' in terms of the annual total number
of swaps traded is more appropriate, what percentage share of the
annual total number of all swaps traded on all SEFs regulated by the
Commission should be used to define ``covered SEF''?
6. Would it be more appropriate for the definition to address the
notional value or the number of swaps in each asset class separately,
or to address the notional value or the number of all swaps combined
regardless of asset class?
7. Do commenters agree that overall risk mitigation for the U.S.
swap market as a whole would be enhanced if the minimum testing
frequency and independent contractor testing requirements were applied
to the most systemically important SEFs? Or do commenters believe that
the testing requirements for all SEFs proposed in the current NPRM are
sufficient for appropriate overall risk mitigation? Or do commenters
believe the minimum testing frequency and independent contractor
testing requirements should be applied to all SEFs in order to
appropriately address the risk to the U.S. swap market?
8. The Commission is considering defining ``covered SEF'' as a SEF
for which the annual total notional value of all swaps traded on or
pursuant to the rules of the SEF is ten percent (10%) or more of the
annual total notional value of all swaps traded on or pursuant to the
rules of all SEFs regulated by the Commission. Via a future NPRM, such
SEFs would be subject to the minimum testing frequency and independent
contractor testing requirements proposed in this current NPRM for
covered DCMs and SDRs. Do commenters agree that this percentage share
provides the most appropriate means of determining which SEFs would be
``covered SEFs'' subject to these requirements? Would a different
percentage share be more appropriate, and if so, what other percentage
share should be used? Should the Commission consider a different
methodology for defining covered SEFs? If so, please explain.
9. How should the benefits and costs of applying the minimum
testing frequency and independent contractor testing requirements to
covered SEFs be quantified or estimated? If possible, provide specific
estimates or data.
10. For each of the five types of cybersecurity testing addressed
in this NPRM, what costs would a covered SEF incur to comply with the
minimum testing frequency and independent contractor testing
requirements?
11. To what extent are SEFs currently meeting the minimum testing
frequency and independent contractor testing requirements proposed in
this NPRM? To the extent possible, please provide specific estimates or
data.
12. How could a SEF most appropriately report to the Commission its
annual total notional value of all swaps traded or its annual total
number of swaps traded, in order to enable the Commission to notify it
of whether it is a covered SEF?
13. Are there additional alternatives or factors which commenters
believe the Commission should consider in determining what, if
anything, to propose in connection with the definition of covered SEFs
and minimum testing frequency and independent contractor testing
requirements for covered SEFs?
List of Subjects
17 CFR Part 37
Commodity futures, Reporting and recordkeeping requirements, System
safeguards testing requirements.
17 CFR Part 38
Commodity futures, Reporting and recordkeeping requirements, System
safeguards testing requirements.
17 CFR Part 49
Administrative practice and procedure, Reporting and recordkeeping
requirements, System safeguards testing requirements.
For the reasons set forth in the preamble, the Commodity Futures
Trading Commission proposes to amend 17 CFR chapter I as follows:
[[Page 80181]]
PART 37--SWAP EXECUTION FACILITIES
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1. The authority citation for part 37 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 5, 6, 6c, 7, 7a-2, 7b-3, and 12a, as
amended by Titles VII and VIII of the Dodd Frank Wall Street Reform
and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376.
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2. Amend Sec. 37.1401 as follows:
0
a. Revise paragraphs (a) and (b);
0
b. Remove paragraph (f);
0
c. Redesignate paragraphs (c) through (e) as paragraphs (d) through
(f);
0
d. Add new paragraph (c);
0
e. Revise paragraph (g);
0
f. Redesignate paragraph (h) as paragraph (j); and
0
g. Add new paragraphs (h), (i), (k), (l), and (m).
The revisions and additions read as follows:
Sec. 37.1401 Requirements.
(a) A swap execution facility's program of risk analysis and
oversight with respect to its operations and automated systems must
address each of the following categories of risk analysis and
oversight:
(1) Enterprise risk management and governance. This category
includes, but is not limited to: Assessment, mitigation, and monitoring
of security and technology risk; security and technology capital
planning and investment; board of directors and management oversight of
technology and security; information technology audit and controls
assessments; remediation of deficiencies; and any other elements of
enterprise risk management and governance included in generally
accepted best practices.
(2) Information security. This category includes, but is not
limited to, controls relating to: Access to systems and data (e.g.,
least privilege, separation of duties, account monitoring and control);
user and device identification and authentication; security awareness
training; audit log maintenance, monitoring, and analysis; media
protection; personnel security and screening; automated system and
communications protection (e.g., network port control, boundary
defenses, encryption); system and information integrity (e.g., malware
defenses, software integrity monitoring); vulnerability management;
penetration testing; security incident response and management; and any
other elements of information security included in generally accepted
best practices.
(3) Business continuity-disaster recovery planning and resources.
This category includes, but is not limited to: Regular, periodic
testing and review of business continuity-disaster recovery
capabilities, the controls and capabilities described in paragraphs
(c), (d), (j), and (k) of this section; and any other elements of
business continuity-disaster recovery planning and resources included
in generally accepted best practices.
(4) Capacity and performance planning. This category includes, but
is not limited to: Controls for monitoring the swap execution
facility's systems to ensure adequate scalable capacity (e.g., testing,
monitoring, and analysis of current and projected future capacity and
performance, and of possible capacity degradation due to planned
automated system changes); and any other elements of capacity and
performance planning included in generally accepted best practices.
(5) Systems operations. This category includes, but is not limited
to: System maintenance; configuration management (e.g., baseline
configuration, configuration change and patch management, least
functionality, inventory of authorized and unauthorized devices and
software); event and problem response and management; and any other
elements of system operations included in generally accepted best
practices.
(6) Systems development and quality assurance. This category
includes, but is not limited to: Requirements development; pre-
production and regression testing; change management procedures and
approvals; outsourcing and vendor management; training in secure coding
practices; and any other elements of systems development and quality
assurance included in generally accepted best practices.
(7) Physical security and environmental controls. This category
includes, but is not limited to: Physical access and monitoring; power,
telecommunication, and environmental controls; fire protection; and any
other elements of physical security and environmental controls included
in generally accepted best practices.
(b) In addressing the categories of risk analysis and oversight
required under paragraph (a) of this section, a swap execution facility
shall follow generally accepted standards and best practices with
respect to the development, operation, reliability, security, and
capacity of automated systems.
(c) A swap execution facility must maintain a business continuity-
disaster recovery plan and business continuity-disaster recovery
resources, emergency procedures, and backup facilities sufficient to
enable timely recovery and resumption of its operations and resumption
of its ongoing fulfillment of its responsibilities and obligations as a
swap execution facility following any disruption of its operations.
Such responsibilities and obligations include, without limitation:
Order processing and trade matching; transmission of matched orders to
a designated clearing organization for clearing, where appropriate;
price reporting; market surveillance; and maintenance of a
comprehensive audit trail. The swap execution facility's business
continuity-disaster recovery plan and resources generally should enable
resumption of trading and clearing of swaps executed on or pursuant to
the rules of the swap execution facility during the next business day
following the disruption. Swap execution facilities determined by the
Commission to be critical financial markets are subject to more
stringent requirements in this regard, set forth in Sec. 40.9 of this
chapter. A swap execution facility must update its business continuity-
disaster recovery plan and emergency procedures at a frequency
determined by an appropriate risk analysis, but at a minimum no less
frequently than annually.
* * * * *
(g) As part of a swap execution facility's obligation to produce
books and records in accordance with Sec. 1.31 of this chapter, Core
Principle 10 (Recordkeeping and Reporting), and Sec. Sec. 37.1000 and
37.1001, a swap execution facility must provide to the Commission the
following system safeguards-related books and records, promptly upon
the request of any Commission representative:
(1) Current copies of its business continuity-disaster recovery
plans and other emergency procedures;
(2) All assessments of its operational risks or system safeguards-
related controls;
(3) All reports concerning system safeguards testing and assessment
required by this chapter, whether performed by independent contractors
or by employees of the swap execution facility; and
(4) All other books and records requested by Commission staff in
connection with Commission oversight of system safeguards pursuant to
the Act or to part 37 of the Commission's regulations, or in connection
with Commission maintenance of a current profile of the swap execution
facility's automated systems.
(5) Nothing in paragraph (g) of this section shall be interpreted
as reducing or limiting in any way a swap execution facility's
obligation to comply with Core Principle 10 (Recordkeeping and
[[Page 80182]]
Reporting) or with Sec. 1.31 of this chapter, or Sec. Sec. 37.1000 or
37.1001 of the Commission's regulations.
(h) A swap execution facility must conduct regular, periodic,
objective testing and review of its automated systems to ensure that
they are reliable, secure, and have adequate scalable capacity. It must
also conduct regular, periodic testing and review of its business
continuity-disaster recovery capabilities. Such testing and review
shall include, without limitation, all of the types of testing set
forth in paragraph (h) of this section.
(1) Definitions. As used in paragraph (h) of this section:
Controls means the safeguards or countermeasures employed by the
swap execution facility in order to protect the reliability, security,
or capacity of its automated systems or the confidentiality, integrity,
and availability of its data and information, and in order to enable
the swap execution facility to fulfill its statutory and regulatory
responsibilities.
Controls testing means assessment of the swap execution facility's
controls to determine whether such controls are implemented correctly,
are operating as intended, and are enabling the swap execution facility
to meet the system safeguards requirements established by this chapter.
Enterprise technology risk assessment means a written assessment
that includes, but is not limited to, an analysis of threats and
vulnerabilities in the context of mitigating controls. An enterprise
technology risk assessment identifies, estimates, and prioritizes risks
to swap execution facility operations or assets, or to market
participants, individuals, or other entities, resulting from impairment
of the confidentiality, integrity, and availability of data and
information or the reliability, security, or capacity of automated
systems.
External penetration testing means attempts to penetrate the swap
execution facility's automated systems from outside the systems'
boundaries to identify and exploit vulnerabilities. Methods of
conducting external penetration testing include, but are not limited
to, methods for circumventing the security features of an automated
system.
Internal penetration testing means attempts to penetrate the swap
execution facility's automated systems from inside the systems'
boundaries, to identify and exploit vulnerabilities. Methods of
conducting internal penetration testing include, but are not limited
to, methods for circumventing the security features of an automated
system.
Key controls means those controls that an appropriate risk analysis
determines are either critically important for effective system
safeguards or intended to address risks that evolve or change more
frequently and therefore require more frequent review to ensure their
continuing effectiveness in addressing such risks.
Security incident means a cyber security or physical security event
that actually or potentially jeopardizes automated system operation,
reliability, security, or capacity, or the availability,
confidentiality or integrity of data.
Security incident response plan means a written plan documenting
the swap execution facility's policies, controls, procedures, and
resources for identifying, responding to, mitigating, and recovering
from security incidents, and the roles and responsibilities of its
management, staff and independent contractors in responding to security
incidents. A security incident response plan may be a separate document
or a business continuity-disaster recovery plan section or appendix
dedicated to security incident response.
Security incident response plan testing means testing of a swap
execution facility's security incident response plan to determine the
plan's effectiveness, identify its potential weaknesses or
deficiencies, enable regular plan updating and improvement, and
maintain organizational preparedness and resiliency with respect to
security incidents. Methods of conducting security incident response
plan testing may include, but are not limited to, checklist completion,
walk-through or table-top exercises, simulations, and comprehensive
exercises.
Vulnerability testing means testing of a swap execution facility's
automated systems to determine what information may be discoverable
through a reconnaissance analysis of those systems and what
vulnerabilities may be present on those systems.
(2) Vulnerability testing. A swap execution facility shall conduct
vulnerability testing of a scope sufficient to satisfy the requirements
set forth in paragraph (k) of this section, at a frequency determined
by an appropriate risk analysis.
(i) Such vulnerability testing shall include automated
vulnerability scanning. Where indicated by appropriate risk analysis,
such scanning must be conducted on an authenticated basis, e.g., using
log-in credentials. Where scanning is conducted on an unauthenticated
basis, the designated contract market must implement effective
compensating controls.
(ii) Vulnerability testing for a swap execution facility shall be
conducted by qualified, independent professionals. Such qualified
independent professionals may be independent contractors or employees
of the swap execution facility, but shall not be persons responsible
for development or operation of the systems or capabilities being
tested.
(3) Penetration testing--(i) External penetration testing. A swap
execution facility shall conduct external penetration testing of a
scope sufficient to satisfy the requirements set forth in paragraph (k)
of this section, at a frequency determined by an appropriate risk
analysis.
(A) External penetration testing for a swap execution facility
shall be conducted by qualified, independent professionals. Such
qualified independent professionals may be independent contractors or
employees of the swap execution facility, but shall not be persons
responsible for development or operation of the systems or capabilities
being tested.
(B) [Reserved]
(ii) Internal penetration testing. A swap execution facility shall
conduct internal penetration testing of a scope sufficient to satisfy
the requirements set forth in paragraph (k) of this section, at a
frequency determined by an appropriate risk analysis.
(A) A swap execution facility may conduct internal penetration
testing by engaging independent contractors, or by using employees of
the swap execution facility who are not responsible for development or
operation of the systems or capabilities being tested.
(B) [Reserved]
(4) Controls testing. A swap execution facility shall conduct
controls testing of a scope sufficient to satisfy the requirements set
forth in paragraph (k) of this section, at a frequency determined by an
appropriate risk analysis. Such controls testing must include testing
of each control included in the swap execution facility's program of
risk analysis and oversight.
(i) Controls testing for a swap execution facility shall be
conducted by qualified, independent professionals. Such qualified
independent professionals may be independent contractors or employees
of the swap execution facility, but shall not be persons responsible
for development or operation of the systems or capabilities being
tested.
(ii) [Reserved]
(5) Security incident response plan testing. A swap execution
facility shall
[[Page 80183]]
conduct security incident response plan testing sufficient to satisfy
the requirements set forth in paragraph (k) of this section, at a
frequency determined by an appropriate risk analysis.
(i) A swap execution facility's security incident response plan
shall include, without limitation, the swap execution facility's
definition and classification of security incidents, its policies and
procedures for reporting security incidents and for internal and
external communication and information sharing regarding security
incidents, and the hand-off and escalation points in its security
incident response process.
(ii) A swap execution facility may coordinate its security incident
response plan testing with other testing required by this section or
with testing of its other business continuity-disaster recovery and
crisis management plans.
(iii) A swap execution facility may conduct security incident
response plan testing by engaging independent contractors or by using
employees of the swap execution facility who are not responsible for
development or operation of the systems or capabilities being tested.
(6) Enterprise technology risk assessment. A swap execution
facility shall conduct enterprise technology risk assessment of a scope
sufficient to satisfy the requirements set forth in paragraph (k) of
this section, at a frequency determined by an appropriate risk
analysis.
(i) A swap execution facility may conduct enterprise technology
risk assessments by using independent contractors or employees of the
swap execution facility who are not responsible for development or
operation of the systems or capabilities being assessed.
(ii) [Reserved]
(i) To the extent practicable, a swap execution facility shall:
(1) Coordinate its business continuity-disaster recovery plan with
those of the market participants it depends upon to provide liquidity,
in a manner adequate to enable effective resumption of activity in its
markets following a disruption causing activation of the swap execution
facility's business continuity-disaster recovery plan;
(2) Initiate and coordinate periodic, synchronized testing of its
business continuity-disaster recovery plan with those of the market
participants it depends upon to provide liquidity; and
(3) Ensure that its business continuity-disaster recovery plan
takes into account the business continuity-disaster recovery plans of
its telecommunications, power, water, and other essential service
providers.
* * * * *
(k) Scope of testing and assessment. The scope for all system
safeguards testing and assessment required by this part must be broad
enough to include all testing of automated systems and controls
necessary to identify any vulnerability which, if triggered, could
enable an intruder or unauthorized user or insider to:
(1) Interfere with the swap execution facility's operations or with
fulfillment of its statutory and regulatory responsibilities;
(2) Impair or degrade the reliability, security, or adequate
scalable capacity of the swap execution facility's automated systems;
(3) Add to, delete, modify, exfiltrate, or compromise the integrity
of any data related to the swap execution facility's regulated
activities; or
(4) Undertake any other unauthorized action affecting the swap
execution facility's regulated activities or the hardware or software
used in connection with those activities.
(l) Internal reporting and review. Both the senior management and
the Board of Directors of the swap execution facility shall receive and
review reports setting forth the results of all testing and assessment
required by this section. The swap execution facility shall establish
and follow appropriate procedures for the remediation of issues
identified through such review, as provided in paragraph (m) of this
section, and for evaluation of the effectiveness of testing and
assessment protocols.
(m) Remediation. A swap execution facility shall analyze the
results of the testing and assessment required by this section to
identify all vulnerabilities and deficiencies in its systems. The swap
execution facility must remediate those vulnerabilities and
deficiencies to the extent necessary to enable the swap execution
facility to fulfill the system safeguards requirements of this part and
meet its statutory and regulatory obligations. Such remediation must be
timely in light of appropriate risk analysis with respect to the risks
presented by such vulnerabilities and deficiencies.
Appendix B to Part 37--[Removed and Reserved]
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3. In Appendix B to Part 37, under the centered section heading Core
Principle 14 of Section 5h of the Act--System Safeguards, remove and
reserve the text.
PART 38--DESIGNATED CONTACT MARKETS
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4. The authority citation for part 38 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 6, 6a, 6c, 6e, 6d, 6f, 6g, 6i, 6j,
6k, 6l, 6m, 6n, 7, 7a-2, 7b, 7b-1, 7b-3, 8, 9, 15, and 21, as
amended by the Dodd-Frank Wall Street Reform and Consumer Protection
Act, Pub. L. 111-203, 124 Stat. 1376.
0
5. Amend Sec. 38.1051 as follows:
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a. Revise paragraphs (a), (b), (c), (g), (h), and (i) introductory
text; and
0
b. Add new paragraphs (k), (l), (m), and (n).
The revisions and additions read as follows:
Sec. 38.1051 General requirements.
(a) A designated contract market's program of risk analysis and
oversight with respect to its operations and automated systems must
address each of the following categories of risk analysis and
oversight:
(1) Enterprise risk management and governance. This category
includes, but is not limited to: Assessment, mitigation, and monitoring
of security and technology risk; security and technology capital
planning and investment; board of directors and management oversight of
technology and security; information technology audit and controls
assessments; remediation of deficiencies; and any other elements of
enterprise risk management and governance included in generally
accepted best practices.
(2) Information security. This category includes, but is not
limited to, controls relating to: Access to systems and data (e.g.,
least privilege, separation of duties, account monitoring and control);
user and device identification and authentication; security awareness
training; audit log maintenance, monitoring, and analysis; media
protection; personnel security and screening; automated system and
communications protection (e.g., network port control, boundary
defenses, encryption); system and information integrity (e.g., malware
defenses, software integrity monitoring); vulnerability management;
penetration testing; security incident response and management; and any
other elements of information security included in generally accepted
best practices.
(3) Business continuity-disaster recovery planning and resources.
This category includes, but is not limited to: Regular, periodic
testing and review of business continuity-disaster recovery
capabilities, the controls and capabilities described in paragraphs
(c), (d), (j), and (k) of this section; and any
[[Page 80184]]
other elements of business continuity-disaster recovery planning and
resources included in generally accepted best practices.
(4) Capacity and performance planning. This category includes, but
is not limited to: Controls for monitoring the designated contract
market's systems to ensure adequate scalable capacity (e.g., testing,
monitoring, and analysis of current and projected future capacity and
performance, and of possible capacity degradation due to planned
automated system changes); and any other elements of capacity and
performance planning included in generally accepted best practices.
(5) Systems operations. This category includes, but is not limited
to: System maintenance; configuration management (e.g., baseline
configuration, configuration change and patch management, least
functionality, inventory of authorized and unauthorized devices and
software); event and problem response and management; and any other
elements of system operations included in generally accepted best
practices.
(6) Systems development and quality assurance. This category
includes, but is not limited to: Requirements development; pre-
production and regression testing; change management procedures and
approvals; outsourcing and vendor management; training in secure coding
practices; and any other elements of systems development and quality
assurance included in generally accepted best practices.
(7) Physical security and environmental controls. This category
includes, but is not limited to: Physical access and monitoring; power,
telecommunication, and environmental controls; fire protection; and any
other elements of physical security and environmental controls included
in generally accepted best practices.
(b) In addressing the categories of risk analysis and oversight
required under paragraph (a) of this section, a designated contract
market shall follow generally accepted standards and best practices
with respect to the development, operation, reliability, security, and
capacity of automated systems.
(c) A designated contract market must maintain a business
continuity-disaster recovery plan and business continuity-disaster
recovery resources, emergency procedures, and backup facilities
sufficient to enable timely recovery and resumption of its operations
and resumption of its ongoing fulfillment of its responsibilities and
obligations as a designated contract market following any disruption of
its operations. Such responsibilities and obligations include, without
limitation: Order processing and trade matching; transmission of
matched orders to a designated clearing organization for clearing;
price reporting; market surveillance; and maintenance of a
comprehensive audit trail. The designated contract market's business
continuity-disaster recovery plan and resources generally should enable
resumption of trading and clearing of the designated contract market's
products during the next business day following the disruption.
Designated contract markets determined by the Commission to be critical
financial markets are subject to more stringent requirements in this
regard, set forth in Sec. 40.9 of this chapter. Electronic trading is
an acceptable backup for open outcry trading in the event of a
disruption. A designated contract market must update its business
continuity-disaster recovery plan and emergency procedures at a
frequency determined by an appropriate risk analysis, but at a minimum
no less frequently than annually.
* * * * *
(g) As part of a designated contract market's obligation to produce
books and records in accordance with Commission regulation Sec. 1.31
of this chapter, Core Principle 18 (Recordkeeping), and Sec. Sec.
38.950 and 38.951, a designated contract market must provide to the
Commission the following system safeguards-related books and records,
promptly upon the request of any Commission representative:
(1) Current copies of its business continuity-disaster recovery
plans and other emergency procedures;
(2) All assessments of its operational risks or system safeguards-
related controls;
(3) All reports concerning system safeguards testing and assessment
required by this chapter, whether performed by independent contractors
or by employees of the designated contract market; and
(4) All other books and records requested by Commission staff in
connection with Commission oversight of system safeguards pursuant to
the Act or to part 38 of the Commission's regulations, or in connection
with Commission maintenance of a current profile of the designated
contract market's automated systems.
(5) Nothing in paragraph (g) of this section shall be interpreted
as reducing or limiting in any way a designated contract market's
obligation to comply with Core Principle 18 (Recordkeeping) or with
Sec. 1.31 of this chapter, or Sec. Sec. 38.950 or 38.951 of the
Commission's regulations.
(h) A designated contract market must conduct regular, periodic,
objective testing and review of its automated systems to ensure that
they are reliable, secure, and have adequate scalable capacity. It must
also conduct regular, periodic testing and review of its business
continuity-disaster recovery capabilities. Such testing and review
shall include, without limitation, all of the types of testing set
forth in paragraph (h) of this section. A covered designated contract
market, as defined in this section, shall be subject to the additional
requirements regarding minimum testing frequency and independent
contractor testing set forth in paragraph (h) of this section.
(1) Definitions. As used in paragraph (h) of this section:
Controls means the safeguards or countermeasures employed by the
designated contract market in order to protect the reliability,
security, or capacity of its automated systems or the confidentiality,
integrity, and availability of its data and information, and in order
to enable the designated contract market to fulfill its statutory and
regulatory responsibilities.
Controls testing means assessment of the designated contract
market's controls to determine whether such controls are implemented
correctly, are operating as intended, and are enabling the designated
contract market to meet the system safeguards requirements established
by this chapter.
Covered designated contract market means a designated contract
market whose annual total trading volume in calendar year 2015, or in
any subsequent calendar year, is five percent (5%) or more of the
combined annual total trading volume of all designated contract markets
regulated by the Commission for the year in question, based on annual
total trading volume information provided to the Commission by each
designated contract market pursuant to the procedure set forth in this
chapter. A covered designated contract market that has annual total
trading volume of less than five percent (5%) of the combined annual
total trading volume of all designated contract markets regulated by
the Commission for two consecutive calendar years ceases to be a
covered designated contract market as of March 1 of the calendar year
following such two consecutive calendar years.
Enterprise technology risk assessment means a written assessment
that includes, but is not limited to, an analysis of threats and
vulnerabilities in the context of mitigating controls. An
[[Page 80185]]
enterprise technology risk assessment identifies, estimates, and
prioritizes risks to designated contract market operations or assets,
or to market participants, individuals, or other entities, resulting
from impairment of the confidentiality, integrity, and availability of
data and information or the reliability, security, or capacity of
automated systems.
External penetration testing means attempts to penetrate the
designated contract market's automated systems from outside the
systems' boundaries to identify and exploit vulnerabilities. Methods of
conducting external penetration testing include, but are not limited
to, methods for circumventing the security features of an automated
system.
Internal penetration testing means attempts to penetrate the
designated contract market's automated systems from inside the systems'
boundaries, to identify and exploit vulnerabilities. Methods of
conducting internal penetration testing include, but are not limited
to, methods for circumventing the security features of an automated
system.
Key controls means those controls that an appropriate risk analysis
determines are either critically important for effective system
safeguards or intended to address risks that evolve or change more
frequently and therefore require more frequent review to ensure their
continuing effectiveness in addressing such risks.
Security incident means a cyber security or physical security event
that actually or potentially jeopardizes automated system operation,
reliability, security, or capacity, or the availability,
confidentiality or integrity of data.
Security incident response plan means a written plan documenting
the designated contract market's policies, controls, procedures, and
resources for identifying, responding to, mitigating, and recovering
from security incidents, and the roles and responsibilities of its
management, staff and independent contractors in responding to security
incidents. A security incident response plan may be a separate document
or a business continuity-disaster recovery plan section or appendix
dedicated to security incident response.
Security incident response plan testing means testing of a
designated contract market's security incident response plan to
determine the plan's effectiveness, identify its potential weaknesses
or deficiencies, enable regular plan updating and improvement, and
maintain organizational preparedness and resiliency with respect to
security incidents. Methods of conducting security incident response
plan testing may include, but are not limited to, checklist completion,
walk-through or table-top exercises, simulations, and comprehensive
exercises.
Vulnerability testing means testing of a designated contract
market's automated systems to determine what information may be
discoverable through a reconnaissance analysis of those systems and
what vulnerabilities may be present on those systems.
(2) Vulnerability testing. A designated contract market shall
conduct vulnerability testing of a scope sufficient to satisfy the
requirements set forth in in paragraph (k) of this section, at a
frequency determined by an appropriate risk analysis.
(i) Such vulnerability testing shall include automated
vulnerability scanning. Where indicated by appropriate risk analysis,
such scanning must be conducted on an authenticated basis, e.g., using
log-in credentials. Where scanning is conducted on an unauthenticated
basis, the designated contract market must implement effective
compensating controls.
(ii) At a minimum, a covered designated contract market shall
conduct such vulnerability testing no less frequently than quarterly.
(iii) A covered designated contract market shall engage independent
contractors to conduct two of the required quarterly vulnerability
tests each year. The covered designated contract market may conduct
other vulnerability testing by using employees of the covered
designated contract market who are not responsible for development or
operation of the systems or capabilities being tested.
(iv) Vulnerability testing for a designated contract market which
is not a covered designated contract market as defined in this section
shall be conducted by qualified, independent professionals. Such
qualified independent professionals may be independent contractors or
employees of the designated contract market, but shall not be persons
responsible for development or operation of the systems or capabilities
being tested.
(3) Penetration testing--(i) External penetration testing. A
designated contract market shall conduct external penetration testing
of a scope sufficient to satisfy the requirements set forth in
paragraph (k) of this section, at a frequency determined by an
appropriate risk analysis.
(A) At a minimum, a covered designated contract market shall
conduct such external penetration testing no less frequently than
annually.
(B) A covered designated contract market shall engage independent
contractors to conduct the required annual external penetration test.
The covered designated contract market may conduct other external
penetration testing by using employees of the covered designated
contract market who are not responsible for development or operation of
the systems or capabilities being tested.
(C) External penetration testing for a designated contract market
which is not a covered designated contract market as defined in this
section shall be conducted by qualified, independent professionals.
Such qualified independent professionals may be independent contractors
or employees of the designated contract market, but shall not be
persons responsible for development or operation of the systems or
capabilities being tested.
(ii) Internal penetration testing. A designated contract market
shall conduct internal penetration testing of a scope sufficient to
satisfy the requirements set forth in paragraph (k) of this section, at
a frequency determined by an appropriate risk analysis.
(A) At a minimum, a covered designated contract market shall
conduct such internal penetration testing no less frequently than
annually.
(B) A designated contract market may conduct internal penetration
testing by engaging independent contractors, or by using employees of
the designated contract market who are not responsible for development
or operation of the systems or capabilities being tested.
(4) Controls testing. A designated contract market shall conduct
controls testing of a scope sufficient to satisfy the requirements set
forth in paragraph (k) of this section, at a frequency determined by an
appropriate risk analysis. Such controls testing must include testing
of each control included in the designated contract market's program of
risk analysis and oversight.
(i) At a minimum, a covered designated contract market shall such
conduct controls testing no less frequently than every two years. The
covered designated contract market may conduct such testing on a
rolling basis over the course of the minimum two-year period or over a
minimum period determined by an appropriate risk analysis, whichever is
shorter.
(ii) A covered designated contract market shall engage independent
contractors to test and assess the key controls included in its program
of risk analysis and oversight no less frequently than every two years.
The covered designated contract market may conduct
[[Page 80186]]
any other controls testing required by paragraph (h)(4) of this section
by using independent contractors or employees of the covered designated
contract market who are not responsible for development or operation of
the systems or capabilities being tested.
(iii) Controls testing for a designated contract market which is
not a covered designated contract market as defined in this section
shall be conducted by qualified, independent professionals. Such
qualified independent professionals may be independent contractors or
employees of the designated contract market, but shall not be persons
responsible for development or operation of the systems or capabilities
being tested.
(5) Security incident response plan testing. A designated contract
market shall conduct security incident response plan testing sufficient
to satisfy the requirements set forth in paragraph (k) of this section,
at a frequency determined by an appropriate risk analysis.
(i) A designated contract market's security incident response plan
shall include, without limitation, the designated contract market's
definition and classification of security incidents, its policies and
procedures for reporting security incidents and for internal and
external communication and information sharing regarding security
incidents, and the hand-off and escalation points in its security
incident response process.
(ii) A designated contract market may coordinate its security
incident response plan testing with other testing required by this
section or with testing of its other business continuity-disaster
recovery and crisis management plans.
(iii) At a minimum, a covered designated contract market shall
conduct such security incident response plan testing no less frequently
than annually.
(iv) A designated contract market may conduct security incident
response plan testing by engaging independent contractors or by using
employees of the designated contract market who are not responsible for
development or operation of the systems or capabilities being tested.
(6) Enterprise technology risk assessment. A designated contract
market shall conduct enterprise technology risk assessment of a scope
sufficient to satisfy the requirements set forth in paragraph (k) of
this section, at a frequency determined by an appropriate risk
analysis.
(i) A covered designated contract market shall conduct an
enterprise technology risk assessment no less frequently than annually.
(ii) A designated contract market may conduct enterprise technology
risk assessments by using independent contractors or employees of the
designated contract market who are not responsible for development or
operation of the systems or capabilities being assessed.
(i) To the extent practicable, a designated contract market shall:
* * * * *
(k) Scope of testing and assessment. The scope for all system
safeguards testing and assessment required by this part must be broad
enough to include all testing of automated systems and controls
necessary to identify any vulnerability which, if triggered, could
enable an intruder or unauthorized user or insider to:
(1) Interfere with the designated contract market's operations or
with fulfillment of its statutory and regulatory responsibilities;
(2) Impair or degrade the reliability, security, or adequate
scalable capacity of the designated contract market's automated
systems;
(3) Add to, delete, modify, exfiltrate, or compromise the integrity
of any data related to the designated contract market's regulated
activities; or
(4) Undertake any other unauthorized action affecting the
designated contract market's regulated activities or the hardware or
software used in connection with those activities.
(l) Internal reporting and review. Both the senior management and
the Board of Directors of the designated contract market shall receive
and review reports setting forth the results of all testing and
assessment required by this section. The designated contract market
shall establish and follow appropriate procedures for the remediation
of issues identified through such review, as provided in paragraph (m)
this section, and for evaluation of the effectiveness of testing and
assessment protocols.
(m) Remediation. A designated contract market shall analyze the
results of the testing and assessment required by this section to
identify all vulnerabilities and deficiencies in its systems. The
designated contract market must remediate those vulnerabilities and
deficiencies to the extent necessary to enable the designated contract
market to fulfill the system safeguards requirements of this part and
meet its statutory and regulatory obligations. Such remediation must be
timely in light of appropriate risk analysis with respect to the risks
presented by such vulnerabilities and deficiencies.
(n) Required production of annual total trading volume. (1) As used
in paragraph (n) of this section, annual total trading volume means the
total number of all contracts traded on or pursuant to the rules of a
designated contract market during a calendar year.
(2) Each designated contract market shall provide to the Commission
for calendar year 2015 and each calendar year thereafter its annual
total trading volume, providing this information for 2015 within 30
calendar days of the effective date of the final version of this rule,
and for 2016 and subsequent years by January 31 of the following
calendar year. For calendar year 2015 and each calendar year
thereafter, the Commission shall provide to each designated contract
market the percentage of the combined annual total trading volume of
all designated contract markets regulated by the Commission which is
constituted by that designated contract market's annual total trading
volume, providing this information for 2015 within 60 calendar days of
the effective date of the final version of this rule, and for 2016 and
subsequent years by February 28 of the following calendar year.
PART 49--SWAP DATA REPOSITORIES
0
6. The authority citation for part 49 continues to read as follows:
Authority: 7 U.S.C. 12a and 24a, as amended by Title VII of the
Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124
Stat. 1376 (2010), unless otherwise noted.
0
7. Amend Sec. 49.24 as follows:
0
a. Revise paragraphs (b), (c), (d), (i), (j), and (k) introductory
text; and
0
b. Add new paragraphs (l), (m), and (n).
The revisions and additions read as follows:
Sec. 49.24 System Safeguards.
* * * * *
(b) A registered swap data repository's program of risk analysis
and oversight with respect to its operations and automated systems must
address each of the following categories of risk analysis and
oversight:
(1) Enterprise risk management and governance. This category
includes, but is not limited to: Assessment, mitigation, and monitoring
of security and technology risk; security and technology capital
planning and investment; board of directors and management oversight of
technology and security; information technology audit and controls
assessments; remediation of deficiencies; and any
[[Page 80187]]
other elements of enterprise risk management and governance included in
generally accepted best practices.
(2) Information security. This category includes, but is not
limited to, controls relating to: Access to systems and data (e.g.
least privilege, separation of duties, account monitoring and control);
user and device identification and authentication; security awareness
training; audit log maintenance, monitoring, and analysis; media
protection; personnel security and screening; automated system and
communications protection (e.g., network port control, boundary
defenses, encryption); system and information integrity (e.g., malware
defenses, software integrity monitoring); vulnerability management;
penetration testing; security incident response and management; and any
other elements of information security included in generally accepted
best practices.
(3) Business continuity-disaster recovery planning and resources.
This category includes, but is not limited to: Regular, periodic
testing and review of business continuity-disaster recovery
capabilities, the controls and capabilities described in paragraphs
(a), (d), (e), (f), and (k) of this section; and any other elements of
business continuity-disaster recovery planning and resources included
in generally accepted best practices.
(4) Capacity and performance planning. This category includes, but
is not limited to: Controls for monitoring the designated contract
market's systems to ensure adequate scalable capacity (e.g., testing,
monitoring, and analysis of current and projected future capacity and
performance, and of possible capacity degradation due to planned
automated system changes); and any other elements of capacity and
performance planning included in generally accepted best practices.
(5) Systems operations. This category includes, but is not limited
to: System maintenance; configuration management (e.g., baseline
configuration, configuration change and patch management, least
functionality, inventory of authorized and unauthorized devices and
software); event and problem response and management; and any other
elements of system operations included in generally accepted best
practices.
(6) Systems development and quality assurance. This category
includes, but is not limited to: Requirements development; pre-
production and regression testing; change management procedures and
approvals; outsourcing and vendor management; training in secure coding
practices; and any other elements of systems development and quality
assurance included in generally accepted best practices.
(7) Physical security and environmental controls. This category
includes, but is not limited to: Physical access and monitoring; power,
telecommunication, and environmental controls; fire protection; and any
other elements of physical security and environmental controls included
in generally accepted best practices.
(c) In addressing the categories of risk analysis and oversight
required under paragraph (b) of this section, a registered swap data
repository shall follow generally accepted standards and best practices
with respect to the development, operation, reliability, security, and
capacity of automated systems.
(d) A registered swap data repository shall maintain a business
continuity-disaster recovery plan and business continuity-disaster
recovery resources, emergency procedures, and backup facilities
sufficient to enable timely recovery and resumption of its operations
and resumption of its ongoing fulfillment of its duties and obligations
as a swap data repository following any disruption of its operations.
Such duties and obligations include, without limitation: The duties set
forth in Sec. 49.19, and maintenance of a comprehensive audit trail.
The swap data repository's business continuity-disaster recovery plan
and resources generally should enable resumption of swap data
repository's operations and resumption of ongoing fulfillment of the
swap data repository's duties and obligations during the next business
day following the disruption. A swap data repository shall update its
business continuity-disaster recovery plan and emergency procedures at
a frequency determined by an appropriate risk analysis, but at a
minimum no less frequently than annually.
* * * * *
(i) As part of a swap data repository's obligation to produce books
and records in accordance with Sec. Sec. 1.31 and 45.2 of this
chapter, and Sec. 49.12, a swap data repository must provide to the
Commission the following system safeguards-related books and records,
promptly upon the request of any Commission representative:
(1) Current copies of its business continuity-disaster recovery
plans and other emergency procedures;
(2) All assessments of its operational risks or system safeguards-
related controls;
(3) All reports concerning system safeguards testing and assessment
required by this chapter, whether performed by independent contractors
or by employees of the swap data repository; and
(4) All other books and records requested by Commission staff in
connection with Commission oversight of system safeguards pursuant to
the Act or Commission regulations, or in connection with Commission
maintenance of a current profile of the swap data repository's
automated systems.
(5) Nothing in paragraph (i) of this section shall be interpreted
as reducing or limiting in any way a swap data repository's obligation
to comply with Sec. Sec. 1.31 or 45.2 of this chapter, or Sec. 49.12
of the Commission's regulations.
(j) A registered swap data repository shall conduct regular,
periodic, objective testing and review of its automated systems to
ensure that they are reliable, secure, and have adequate scalable
capacity. It shall also conduct regular, periodic testing and review of
its business continuity-disaster recovery capabilities. Such testing
and review shall include, without limitation, all of the types of
testing set forth in paragraph (j) of this section.
(1) Definitions. As used in paragraph (j) of this section:
Controls means the safeguards or countermeasures employed by the
swap data repository in order to protect the reliability, security, or
capacity of its automated systems or the confidentiality, integrity,
and availability of its data and information, and in order to enable
the swap data repository to fulfill its statutory and regulatory duties
and responsibilities.
Controls testing means assessment of the swap data repository's
controls to determine whether such controls are implemented correctly,
are operating as intended, and are enabling the swap data repository to
meet the system safeguards requirements established by this chapter.
Enterprise technology risk assessment means a written assessment
that includes, but is not limited to, an analysis of threats and
vulnerabilities in the context of mitigating controls. An enterprise
technology risk assessment identifies, estimates, and prioritizes risks
to swap data repository operations or assets, or to market
participants, individuals, or other entities, resulting from impairment
of the confidentiality, integrity, and availability of data and
information or the reliability, security, or capacity of automated
systems.
External penetration testing means attempts to penetrate the swap
data repository's automated systems from outside the systems'
boundaries to
[[Page 80188]]
identify and exploit vulnerabilities. Methods of conducting external
penetration testing include, but are not limited to, methods for
circumventing the security features of an automated system.
Internal penetration testing means attempts to penetrate the swap
data repository's automated systems from inside the systems'
boundaries, to identify and exploit vulnerabilities. Methods of
conducting internal penetration testing include, but are not limited
to, methods for circumventing the security features of an automated
system.
Key controls means those controls that an appropriate risk analysis
determines are either critically important for effective system
safeguards or intended to address risks that evolve or change more
frequently and therefore require more frequent review to ensure their
continuing effectiveness in addressing such risks.
Security incident means a cyber security or physical security event
that actually or potentially jeopardizes automated system operation,
reliability, security, or capacity, or the availability,
confidentiality or integrity of data.
Security incident response plan means a written plan documenting
the swap data repository's policies, controls, procedures, and
resources for identifying, responding to, mitigating, and recovering
from security incidents, and the roles and responsibilities of its
management, staff and independent contractors in responding to security
incidents. A security incident response plan may be a separate document
or a business continuity-disaster recovery plan section or appendix
dedicated to security incident response.
Security incident response plan testing means testing of a swap
data repository's security incident response plan to determine the
plan's effectiveness, identify its potential weaknesses or
deficiencies, enable regular plan updating and improvement, and
maintain organizational preparedness and resiliency with respect to
security incidents. Methods of conducting security incident response
plan testing may include, but are not limited to, checklist completion,
walk-through or table-top exercises, simulations, and comprehensive
exercises.
Vulnerability testing means testing of a swap data repository's
automated systems to determine what information may be discoverable
through a reconnaissance analysis of those systems and what
vulnerabilities may be present on those systems.
(2) Vulnerability testing. A swap data repository shall conduct
vulnerability testing of a scope sufficient to satisfy the requirements
set forth in paragraph (l) of this section.
(i) Such vulnerability testing shall include automated
vulnerability scanning. Where indicated by appropriate risk analysis,
such scanning must be conducted on an authenticated basis, e.g., using
log-in credentials. Where scanning is conducted on an unauthenticated
basis, the swap data repository must implement effective compensating
controls.
(ii) The swap data repository shall conduct such vulnerability
testing at a frequency determined by an appropriate risk analysis, but
no less frequently than quarterly.
(iii) The swap data repository shall engage independent contractors
to conduct two of the required quarterly vulnerability tests each year.
The swap data repository may conduct other vulnerability testing by
using employees of the swap data repository who are not responsible for
development or operation of the systems or capabilities being tested.
(3) Penetration testing--(i) External penetration testing. A swap
data repository shall conduct external penetration testing of a scope
sufficient to satisfy the requirements set forth in paragraph (l) of
this section.
(A) The swap data repository shall conduct such external
penetration testing at a frequency determined by an appropriate risk
analysis, but no less frequently than annually.
(B) The swap data repository shall engage independent contractors
to conduct the required annual external penetration test. The swap data
repository may conduct other external penetration testing by using
employees of the swap data repository who are not responsible for
development or operation of the systems or capabilities being tested.
(ii) Internal penetration testing. A swap data repository shall
conduct internal penetration testing of a scope sufficient to satisfy
the requirements set forth in paragraph (l) of this section.
(A) The swap data repository shall conduct such internal
penetration testing at a frequency determined by an appropriate risk
analysis, but no less frequently than annually.
(B) The swap data repository may conduct internal penetration
testing by engaging independent contractors, or by using employees of
the swap data repository who are not responsible for development or
operation of the systems or capabilities being tested.
(4) Controls testing. A swap data repository shall conduct controls
testing of a scope sufficient to satisfy the requirements set forth in
paragraph (l) of this section. Such controls testing shall include
testing of each control included in the swap data repository's program
of system safeguards risk analysis and oversight.
(i) The swap data repository shall conduct controls testing at a
frequency determined by an appropriate risk analysis, but no less
frequently than every two years. The swap data repository may conduct
such testing on a rolling basis over the course of the minimum two-year
period or over a minimum period determined by an appropriate risk
analysis, whichever is shorter.
(ii) The swap data repository shall engage independent contractors
to test and assess the key controls, as determined by appropriate risk
analysis, included in the entity's program of risk analysis and
oversight no less frequently than every two years. The swap data
repository may conduct any other controls testing required by this
paragraph (j)(4) of this section by using independent contractors or
employees of the swap data repository who are not responsible for
development or operation of the systems or capabilities being tested.
(5) Security incident response plan testing. A swap data repository
shall conduct security incident response plan testing sufficient to
satisfy the requirements set forth in paragraph (l) of this section.
(i) The swap data repository's security incident response plan
shall include, without limitation, the swap data repository's
definition and classification of security incidents, its policies and
procedures for reporting security incidents and for internal and
external communication and information sharing regarding security
incidents, and the hand-off and escalation points in its security
incident response process.
(ii) The swap data repository may coordinate its security incident
response plan testing with other testing required by this section or
with testing of its other business continuity-disaster recovery and
crisis management plans.
(iii) The swap data repository shall conduct such security incident
response plan testing at a frequency determined by an appropriate risk
analysis, but at a minimum no less frequently than annually.
(iv) The swap data repository may conduct security incident
response plan testing by engaging independent contractors or by using
employees of the swap data repository who are not
[[Page 80189]]
responsible for development or operation of the systems or capabilities
being tested.
(6) Enterprise technology risk assessment. A swap data repository
shall conduct enterprise technology risk assessment of a scope
sufficient to satisfy the requirements set forth in paragraph (l) of
this section.
(i) The swap data repository shall conduct an enterprise technology
risk assessment at a frequency determined by an appropriate risk
analysis, but no less frequently than annually.
(ii) The swap data repository may conduct enterprise technology
risk assessments by using independent contractors or employees of the
swap data repository who are not responsible for development or
operation of the systems or capabilities being assessed.
(k) To the extent practicable, a registered swap data repository
shall:
* * * * *
(l) Scope of testing and assessment. The scope for all system
safeguards testing and assessment required by this section must be
broad enough to include all testing of automated systems and controls
necessary to identify any vulnerability which, if triggered, could
enable an intruder or unauthorized user or insider to:
(1) Interfere with the swap data repository's operations or with
fulfillment of its statutory and regulatory responsibilities;
(2) Impair or degrade the reliability, security, or adequate
scalable capacity of the swap data repository's automated systems;
(3) Add to, delete, modify, exfiltrate, or compromise the integrity
of any data related to the swap data repository's regulated activities;
or
(4) Undertake any other unauthorized action affecting the swap data
repository's regulated activities or the hardware or software used in
connection with those activities.
(m) Internal reporting and review. Both the senior management and
the Board of Directors of the swap data repository shall receive and
review reports setting forth the results of all testing and assessment
required by this section. The swap data repository shall establish and
follow appropriate procedures for the remediation of issues identified
through such review, as provided in paragraph (n) of this section, and
for evaluation of the effectiveness of testing and assessment
protocols.
(n) Remediation. A swap data repository shall analyze the results
of the testing and assessment required by this section to identify all
vulnerabilities and deficiencies in its systems. The swap data
repository must remediate those vulnerabilities and deficiencies to the
extent necessary to enable the swap data repository to fulfill the
system safeguards requirements of this part and meet its statutory and
regulatory obligations. Such remediation must be timely in light of
appropriate risk analysis with respect to the risks presented by such
vulnerabilities and deficiencies.
Issued in Washington, DC, on December 17, 2015, 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 System Safeguards Testing Requirements--Commission Voting
Summary, Chairman's Statement, and Commissioners' Statements 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
I strongly support this proposed rule, which would enhance and
clarify requirements to protect exchanges, swap execution facilities
and swap data repositories from numerous cybersecurity risks.
This proposal, alongside a companion measure released by the
Commission's Division of Clearing and Risk, ensures that the private
companies that run the core infrastructure under our jurisdiction
are doing adequate evaluation of cybersecurity risks and testing of
their own cybersecurity and operational risk protections.
I believe this proposed rule will help address a number of
concerns, such as information security, physical security, business
continuity and disaster recovery. The proposal sets principles-based
testing standards which are deeply rooted in industry best
practices.
The rule identifies five types of testing as critical to a sound
system safeguards program: Vulnerability testing, penetration
testing, controls testing, security incident response plan testing
and enterprise-wide assessment of technology risk. Such efforts are
vital to mitigate risk and preserve the ability to detect, contain,
respond to, and recover from a cyberattack or other type of
operational problem.
The proposal applies the base standards to swap execution
facilities. It also contains an anticipated notice of proposed
rulemaking, which notes that the Commission is considering whether
to apply minimum testing frequency and independent contractor
testing requirements to the most systemically important swap
execution facilities. I previously stated that I did not expect our
proposal would apply to SEFs--not because cybersecurity isn't just
as important for them--but because many SEFs are still in the very
early stages of operation.
But my fellow commissioners have expressed concerns about
potential vulnerabilities and felt that we should propose that the
requirements apply to SEFs at this time. I appreciate their views
and am committed to working collaboratively to address these issues.
As always, we welcome public comment on this and its companion
proposal, which will be carefully considered before taking any final
action.
Appendix 3--Concurring Statement of Commissioner Sharon Y. Bowen
Today, we are considering two rule proposals that address an
issue which is right at the heart of systemic risk in our markets--
cybersecurity. The question that we face is: With a problem as
immense as cybercrime, and the many measures already being employed
to combat it, what would today's proposed rules accomplish? In
answer to that question, I want to say a few words about our
cybercrime challenge, what is currently being done to address it,
and what I hope these proposed regulations would add to these
efforts.
The problem is clear--our firms are facing an unrelenting
onslaught of attacks from hackers with a number of motives ranging
from petty fraud to international cyberwarfare. We have all heard of
notable and sizable companies that have been the victim of
cybercrime, including: Sony, eBay, JPMorgan, Target, and Staples--
even the U.S. government has fallen victim.
In recent testimony before the House Committee on Financial
Services, Subcommittee on Oversight and Investigations about
cybercrime, the Director of the Center for Cyber and Homeland
Security noted that the ``U.S. financial services sector in
particular is in the crosshairs as a primary target.'' \1\ He cited
one U.S. bank which stated that it faced 30,000 cyber-attacks in one
week--averaging an attack every 34 seconds.\2\
---------------------------------------------------------------------------
\1\ Testimony of Frank J. Cilluffo, Director, Center for Cyber
and Homeland Security, Before the U.S. House of Representatives,
Committee on Financial Services, Subcommittee on Oversight and
Investigations, 1 (June 16, 2015)(noting that ``the following
figures which were provided to me recently by a major U.S. bank on a
not-for-attribution basis: Just last week, they faced 30,000 cyber-
attacks. This amounts to an attack every 34 seconds, each and every
day. And these are just the attacks that the bank actually knows
about, by virtue of a known malicious signature or IP address. As
for the source of the known attacks, approximately 22,000 came from
criminal organizations; and 400 from nation-states.''), available at
https://cchs.gwu.edu/sites/cchs.gwu.edu/files/downloads/A%20Global%20Perspective%20on%20Cyber%20Threats%20-%2015%20June%202015.pdf.
\2\ Id.
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Given the magnitude of the problem, it is not at all surprising
that a lot is already being done to address it. The Department of
Homeland Security and others have been working with private firms to
shore up defenses. Regulators have certainly been
[[Page 80190]]
active. The Securities and Exchange Commission (``SEC''), the
Federal Deposit Insurance Corporation (``FDIC''), the Federal
Reserve Board (``FRB''), the Federal Housing Finance Agency
(``FHFA''), and our self-regulatory organization, the National
Futures Association (``NFA''), have issued cybersecurity guidance.
In Europe, the Bank of England (``BOE'') introduced the CBEST
program to conduct penetration testing on firms, based on the latest
data on cybercrime. We heard a presentation from the BOE about CBEST
at a meeting of the Market Risk Advisory Committee this year.
I wanted to hear what market participants were doing to address
the challenge of our cybersecurity landscape so I met with several
of our large registrant dealers and asked them about their
cybersecurity efforts. After these discussions, I was both alarmed
by the immensity of the problem and heartened by efforts of these
larger participants to meet that problem head on. They were
employing best practices such as reviewing the practices of their
third party providers, using third parties to audit systems, sharing
information with other market participants, integrating
cybersecurity risk management into their governance structure, and
staying in communication with their regulators.
We have also been vigilant in our efforts to address
cybersecurity. Under our current rule structure, many of our
registrants have system safeguards requirements. They require, among
other things, that the registrants have policies and resources for
risk analysis and oversight with respect to their operations and
automated systems, as well as reporting, recordkeeping, testing, and
coordination with service providers. These requirements clearly
include appropriate cybersecurity measures. We also regularly
examine registrants for their adherence to the system safeguards
requirements, including effective governance, use of resources,
appropriate policies, and vigilant response to attacks.
So if all of this is happening, what would more regulation
accomplish? In other words, what is the ``value add'' of the rules
being proposed today? The answer is: A great deal. While some firms
are clearly engaging in best practices, we have no guarantee that
all of them are. And as I have said before, in a system as
electronically interconnected as our financial markets, ``we're
collectively only as strong as our weakest link, and so we need a
high baseline level of protection for everyone . . .'' \3\ We need
to incentivize all firms under our purview to engage in these
effective practices.
---------------------------------------------------------------------------
\3\ Commissioner Sharon Y. Bowen, Commodity Futures Trading
Commission, ``Remarks of CFTC Commissioner Sharon Y. Bowen Before
the 17th Annual OpRisk North America,'' March 25, 2015, available at
http://www.cftc.gov/PressRoom/SpeechesTestimony/opabowen-2.
---------------------------------------------------------------------------
We have to do this carefully though because once a regulator
inserts itself into the cybersecurity landscape at a firm--the firm
now has two concerns: Not just fighting the attackers, but managing
its reputation with its regulator. So, if not done carefully, a
regulator's attempt to bolster cybersecurity at a firm can instead
undermine it by incentivizing the firm to cover up any weaknesses in
its cybersecurity infrastructure, instead of addressing them.
Further, we must be careful not to mandate a one-size-fits-all
standard because firms are different. Thus, we must be thoughtful
about how to engage on this issue. We need to encourage best
practices, while not hampering firms' ability to customize their
risk management plan to address their cybersecurity threats.
I think these rulemakings are a great first step in
accomplishing that balance. There are many aspects of these
proposals that I like. First, they set up a comprehensive testing
regime by: (a) Defining the types of cybersecurity testing essential
to fulfilling system safeguards testing obligations, including
vulnerability testing, penetration testing, controls testing,
security incident response plan testing, and enterprise technology
risk assessment; (b) requiring internal reporting and review of
testing results; and (c) mandating remediation of vulnerabilities
and deficiencies. Further, for certain significant entities, based
on trading volume, it requires heightened measures such as minimum
frequency requirements for conducting certain testing, and specific
requirements for the use of independent contractors.
Second, there is a focus on governance--requiring, for instance,
that firms' Board of Directors receive and review all reports
setting forth the results of all testing. And third, these
rulemakings are largely based on well-regarded, accepted best
practices for cybersecurity, including The National Institute of
Standards and Technology Framework for Improving Critical
Infrastructure Cybersecurity (``NIST Framework'').\4\
---------------------------------------------------------------------------
\4\ NIST Framework, Subcategory PR.IP-10, at 28, and Category
DE.DP, at 31, available at http://www.nist.gov/cyberframework/upload/cybersecurity-framework-021214.pdf.
---------------------------------------------------------------------------
In all, I think the staff has put together two thoughtful
proposals. Clearly, however, this is only a first step since all our
registrants, not just exchanges, SEFs, SDRs and DCOs, need to have
clear cybersecurity measures in place. I am also very eager to hear
what the general public has to say about these proposals. Do they go
far enough to incentivize appropriate cybersecurity measures? Are
they too burdensome for firms that do not pose significant risk to
the system? And given that this is a dynamic field with a constantly
evolving set of threats, what next steps should we take to address
cybercrime? Please send in all your thoughts for our consideration.
Appendix 4--Statement of Commissioner J. Christopher Giancarlo
In one of our very first conversations over a year and a half
ago, Chairman Massad and I discussed the many risks that cyber
threats pose to trading markets. We agreed that cyber and overall
system security is one of the most important issues facing markets
today in terms of trading integrity and financial stability.
Earlier this year, I called for a ``bottom-up'' approach to
combating cyber threats.\1\ This approach involves a close and
dynamic relationship between regulators and the marketplace. It also
requires the continuous development of best practices, defensive
strategies and response tactics through the leadership of market
participants, operators and self-regulatory organizations. The job
of the Commodity Futures Trading Commission (``CFTC'') as a
regulator is to encourage, support, inform and empower this
continuous development so that market participants adopt fully
optimized and up-to-date cyber defenses.
---------------------------------------------------------------------------
\1\ See Guest Lecture of Commissioner J. Christopher Giancarlo,
Harvard Law School, Fidelity Guest Lecture Series on International
Finance (Dec. 1, 2015), http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo-11; see also Keynote Address of CFTC
Commissioner J. Christopher Giancarlo before the 2015 ISDA Annual
Asia Pacific Conference, Top Down Financial Market Regulation:
Disease Mislabeled as Cure (Oct. 26, 2015), http://www.cftc.gov/PressRoom/SpeechesTestimony/opagiancarlo-10.
---------------------------------------------------------------------------
It is appropriate that we are now taking up the subject of
system safeguards. I commend Chairman Massad and CFTC staff for
putting forth today's proposal. I believe it generally reflects the
``bottom-up'' approach I have advocated for market participants to
follow industry adopted standards and best practices. I support its
publication for notice and comment.
I believe it is right that the proposal covers not just
designated contract markets (``DCMs''), but also swap execution
facilities (``SEFs''). From my experience, SEFs are as concerned
with cyber security as are DCMs. Nevertheless, it is true that the
proposed rules will impose additional costs on some SEFs at a time
when they are struggling to implement the myriad new Dodd-Frank
requirements and obligations. Because system and cyber security
should be a priority on our registrants' precious time and
resources, the CFTC must find ways to alleviate unnecessary
regulatory costs.
As I have said many times before, the best way to reduce
unnecessary costs for SEFs is to correct the CFTC's flawed swaps
trading rules that remain fundamentally mismatched to the distinct
liquidity and trading dynamics of global swaps markets.\2\
Attempting to
[[Page 80191]]
accommodate this misbegotten regulatory framework restricts the SEF
industry's ability to deploy adequate resources for cyber defense. I
also believe that the CFTC should provide a sufficient
implementation period for any final rules so that market operators,
especially smaller DCMs and SEFs, have adequate time to meet the new
requirements.
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\2\ See CFTC Commissioner J. Christopher Giancarlo, Pro-Reform
Reconsideration of the CFTC Swaps Trading Rules: Return to Dodd-
Frank, White Paper (Jan. 29, 2015), available at http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/sefwhitepaper012915.pdf (noting that this mismatch--and the
application of this framework worldwide--has caused numerous harms,
foremost of which is driving global market participants away from
transacting with entities subject to CFTC swaps regulation,
resulting in fragmented global swaps markets); see also Statement of
Commissioner J. Christopher Giancarlo, Six Month Progress Report on
CFTC Swaps Trading Rules: Incomplete Action and Fragmented Markets
(Aug. 4, 2015), http://www.cftc.gov/PressRoom/SpeechesTestimony/giancarlostatement080415. See also International Swaps and
Derivatives Association, Cross-Border Fragmentation of Global
Interest Rate Derivatives: The New Normal? First Half 2015 Update,
ISDA Research Note (Oct. 28, 2015), http://www2.isda.org/functional-areas/research/research-notes/ (concluding that the market for euro
interest rate swaps continues to remain fragmented in U.S. and non-
U.S. liquidity pools ever since the introduction of the U.S. SEF
regime in October 2013).
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Given the constantly morphing nature of cyber risk, the best
defenses provide no guarantee of protection. Therefore, it would be
a perverse and unfortunate result if any final system safeguards
rule were to have a chilling effect on robust cyber security
efforts. Market participants who abide by the rule should not be
afraid of a ``double whammy'' of a destructive cyber-attack followed
shortly thereafter by a CFTC enforcement action. Being hacked, by
itself, cannot be considered a rule violation subject to
enforcement. The CFTC should offer clear guidance to market
participants regarding their obligations under the rule and
designate safe harbors for compliance with it.\3\ The CFTC should
also indicate how it will measure market operators' compliance
against industry standards given that the exact requirements of best
practices can be open to interpretation.
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\3\ The proposal requires market operators to follow industry
adopted standards and best practices. Given the many organizations
and U.S. government agencies (such as the U.S. Treasury Department's
Financial Crimes Enforcement Network, the Office of Domestic
Finance's Financial Sector Cyber Intelligence Group and the Office
of Terrorist Financing and Financial Crimes) issuing cyber security
procedures and advisories, there may be some question as to which
procedures and advisories fall within industry best practices for
purposes of complying with this rule proposal. To provide clarity,
the CFTC should offer guidance to market participants regarding
their obligations under the rule and designate safe harbors for
compliance, as needed.
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In October, I called on the CFTC to add value to ongoing
industry cyber security initiatives by designating a qualified cyber
security information coordinator.\4\ This individual would work with
our registered entities to help them navigate the maze of Federal
national security agencies and access the most up-to-date cyber
security information available. I ask market participants to comment
on the value and utility of such a designation.
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\4\ See supra note 1.
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As market regulators, we can have no na[iuml]ve illusions that
cyber belligerents--foreign and domestic--view the world's financial
markets as anything other than 21st century battlefields. Cyber-
attacks on trading markets will not diminish anytime soon. They will
be relentless for years, if not decades, to come. Cyber risk is a
threat for which Dodd-Frank provides no guidance whatsoever.
Together, market regulators and the regulated community must make
cyber and system security our first priority in time and attention.
Today's proposal is a constructive step towards that goal. I look
forward to reviewing thoughtful comments from market participants
and the public.
[FR Doc. 2015-32143 Filed 12-22-15; 8:45 am]
BILLING CODE 6351-01-P
Last Updated: December 23, 2015