2020-21005
Federal Register, Volume 85 Issue 186 (Thursday, September 24, 2020)
[Federal Register Volume 85, Number 186 (Thursday, September 24, 2020)]
[Proposed Rules]
[Pages 60110-60115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21005]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 190
RIN 3038-AE67
Bankruptcy Regulations
AGENCY: Commodity Futures Trading Commission.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: In April of 2020, the Commodity Futures Trading Commission
(the ``Commission'') proposed amendments to its regulations governing
bankruptcy proceedings of commodity brokers. In light of comments on
the proposed amendments, the Commission is proposing a revision of the
proposed amendments with respect to a particular issue, specifically,
efforts to foster a resolution proceeding under Title II of the Dodd-
Frank Act.
DATES: Comments must be received on or before October 26, 2020.
ADDRESSES: You may submit comments, identified by ``Part 190 Bankruptcy
Regulations'' and RIN number 3038-AE67, by any of the following
methods:
CFTC Comments Portal: https://comments.cftc.gov. Select
the ``Submit Comments'' link for this rulemaking and follow the
instructions on the Public Comment Form.
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: Follow the same instructions as for
Mail, above.
Please submit your comments using only one of these methods. To
avoid possible delays with mail or in-person deliveries, submissions
through the CFTC Comments Portal are encouraged.
All comments must be submitted in English, or if not, accompanied
by an English translation. Comments will be posted as received to
https://comments.cftc.gov. You should submit only information that you
wish to make available publicly. If you wish the Commission to consider
information that you believe is exempt from disclosure under the
Freedom of Information Act (FOIA), a petition for confidential
treatment of the exempt information may be submitted according
[[Page 60111]]
to the procedures established in Sec. 145.9 of the Commission's
regulations.\1\
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\1\ 17 CFR 145.9. Commission regulations referred to in this
release are found at 17 CFR chapter I (2019), and are accessible on
the Commission's website at https://www.cftc.gov/LawRegulation/CommodityExchangeAct/index.htm.
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The Commission reserves the right, but shall have no obligation, to
review, pre-screen, filter, redact, refuse or remove any or all of your
submission from https://comments.cftc.gov that it may deem to be
inappropriate for publication, such as obscene language. All
submissions that have been redacted or removed that contain comments on
the merits of the rulemaking will be retained in the public comment
file and will be considered as required under the Administrative
Procedure Act and other applicable laws, and may be accessible under
the FOIA.
FOR FURTHER INFORMATION CONTACT: Robert B. Wasserman, Chief Counsel and
Senior Advisor, 202-418-5092, [email protected], Commodity Futures
Trading Commission, Three Lafayette Centre, 1155 21st Street NW,
Washington, DC 20581.
I. Introduction
In April 2020, the Commission approved a proposal to update
comprehensively its commodity broker bankruptcy rules, 17 CFR part 190
(the ``Proposal'').\2\ Subpart C of those proposed rules is intended to
establish a bespoke set of rules for the bankruptcy of a derivatives
clearing organization (``DCO''). Within Subpart C, Sec. 190.14
addresses operation of the estate of the debtor clearing organization
subsequent to the order for relief. Proposed Sec. 190.14(b)(1) states
that except as otherwise explicitly provided in paragraph (b), the DCO
shall cease making calls for variation or initial margin.
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\2\ 85 FR 36000 (June 12, 2020).
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That alternative provision is found in proposed Sec. 190.14(b)(2)
and (3), and was intended to provide a brief opportunity, after the
order for relief, to enable paths alternative to liquidation--that is,
resolution under Title II of the Dodd-Frank Wall Street Reform and
Consumer Protection Act \3\ (``Title II Resolution''), or transfer of
clearing operations to another DCO--in cases where a short delay (i.e.,
less than or equal to six days) might facilitate such an alternative
path.\4\ The aim of proposed Sec. 190.14(b)(2) and (3) was to avoid a
DCO's bankruptcy filing having an irrevocable consequence of
termination of clearing operations, an event that would likely be
disruptive of markets and possibly the broader United States financial
system, in a case where an alternative path was close to fruition.
Proposed Sec. 190.14(b)(2) and (3) applied to all DCOs, and was
intended to foster either Resolution or transfer of clearing
operations.
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\3\ 12 U.S.C. 5381 et. seq.
\4\ Proposed Sec. 190.14(b)(2) would enable the trustee to
request permission of the Commission to continue operations of the
DCO while proposed paragraph (b)(3) would set forth the procedure
for the Commission to respond to the request.
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A number of commenters \5\ indicated strong concern that the
approach in proposed Sec. 190.14(b) might interfere with DCO rules
concerning close-out netting, noting that these rules, and the
enforceability of such rules, are necessary for the DCO's rules to
constitute a ``Qualifying Master Netting Agreement'' (``QMNA'') for
purposes of bank capital requirements. These bank capital requirements
are established by the regulators of the banks and bank holding
companies that many clearing members are affiliated with or part of:
The Federal Deposit Insurance Corporation (``FDIC''), the Board of
Governors of the Federal Reserve System (``Federal Reserve''), and the
Office of the Comptroller of the Currency (``OCC'') (together, the
``Prudential Regulators''); qualification of such DCO rules as a QMNA
is, in turn, necessary in order for the banks and bank holding
companies that clearing members are affiliated with or part of to net
the exposures of their contracts cleared with the DCO in calculating
bank capital requirements.\6\
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\5\ See, e.g., FIA at 3-6.
\6\ For the FDIC, see 12 CFR 324.35(c)(2)(i) (measuring clearing
member's trade exposure to a qualifying CCP based on either
individual derivative contracts or netting sets of derivative
contracts); 12 CFR 324.2 (defining netting set to mean, as relevant
here, a group of transactions with a single counterparty that are
subject to a qualifying master netting agreement). Analogous rules
apply to banks regulated by the Federal Reserve (12 CFR
217.133(c)(2)(i) and 217.2) and the OCC (12 CFR 3.35(c)(2)(i) and
3.2).
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Qualified Master Netting Agreements. The definition of QMNA \7\
requires that any exercise of rights under the agreement will not be
stayed or avoided under applicable law in the relevant jurisdictions,
other than receivership, conservatorship, or resolution under the
Federal Deposit Insurance Act,\8\ Title II Resolution or under any
similar insolvency law applicable to government-sponsored enterprises,
or laws of foreign jurisdictions that are substantially similar to the
foregoing. A Chapter 7 bankruptcy (including such a bankruptcy subject
to part 190) does not fit within the foregoing list, and thus to the
extent that proposed Sec. 190.14(b)(2) and (3) acts as a stay, it
would undermine the QMNA status of DCO rules. If clearing members that
are part of banks are not able to net their contracts cleared with a
DCO, there would be significantly increased bank capital requirements
associated with such contracts. Such an increase in bank capital
requirements would disrupt both proprietary and customer clearing.
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\7\ See 12 CFR 324.2 (FDIC), 217.2 (Federal Reserve), and 3.2
(OCC).
\8\ 12 U.S.C. 1811.
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Some commenters noted that proposed Sec. 190.14(b)(2)(ii)(A)
already required, for continued operation on a temporary basis, that
such operation would need to be practicable, and that rules of the DCO
that would compel the termination of outstanding contracts upon the
order for relief would be inconsistent with the practicability of
continued operation.\9\ Others considered that the references to
continued operation created an unacceptable level of legal uncertainty
regarding the enforceability of closeout netting provisions. In
addition, some commenters expressed doubt that continued operation of a
DCO by a trustee in bankruptcy, including collection and payment of
margin, would be practicable.\10\
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\9\ See, e.g., CME section IV.D.
\10\ See, e.g., FIA at 6.
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Withdrawal of proposed Sec. 190.14(b)(2) and (3). No DCO
registered with the Commission has ever been subject to bankruptcy, or
even come close to insolvency. In the unprecedented and highly unlikely
case that such a bankruptcy were to happen, it would be beneficial to
foster the transfer of clearing operations, including contracts, from
the DCO in Chapter 7 liquidation to another DCO, to the extent that
such an opportunity presents itself. However, to the extent that
fostering the transfer of clearing operations in a hypothetical
unprecedented bankruptcy undermines the present-day netting treatment
under bank capital rules of all bank-affiliated clearing members of a
DCO, the benefit is not worth the cost.\11\ Moreover, while it would be
beneficial, and it may be possible to develop an acceptable means, to
foster Resolution under Title II in the case of certain DCOs in Chapter
7 liquidation, the means proposed in Sec. 190.14(b)(2) and (3) do not
result in a practicable and effective way to achieve this result at an
acceptable cost. Accordingly, the Commission is
[[Page 60112]]
withdrawing proposed Sec. 190.14(b)(2) and (3).\12\
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\11\ As noted below, see infra n.233, a transfer approved
pursuant to 11 U.S.C. 363 (unlike a transfer pursuant to a Title II
Resolution) would not have the effect of avoiding a contractual
termination provision.
\12\ The Commission will make appropriate edits to the language
in proposed Sec. 190.14(b)(1) as part of the process of finalizing
the Part 190 rule proposal.
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As discussed further below, the Commission is instead proposing
that the part 190 regulations include a provision that is intended to
foster, for a brief period after a bankruptcy filing, the Title II
Resolution of a DCO, in particular a systemically important DCO
(``SIDCO''),\13\ but through means different to those in the original
proposal for Sec. 190.14(b)(2) and (3).
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\13\ 17 CFR 39.2 defines systemically important derivatives
clearing organization to mean a financial market utility that is a
derivatives clearing organization registered under section 5b of the
Act, which is currently designated by the Financial Stability
Oversight Council to be systemically important and for which the
Commission acts as the Supervisory Agency pursuant to 12 U.S.C.
5462(8).
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Resolution under Title II of Dodd-Frank. Title II Resolution is
designed to address cases where a financial company is in default or
danger of default, and where the failure of the financial company and
its resolution under otherwise applicable Federal or State law would
have serious adverse effects on financial stability in the United
States.\14\ Default or danger of default includes a circumstance where
a case has been, or likely will promptly be, commenced with respect to
the financial company under the Bankruptcy Code.\15\ The Financial
Stability Oversight Council (``FSOC'') has determined that the failure
of either of the two systemically important derivatives clearing
organizations, CME and ICE Clear Credit, would likely threaten the
stability of the broader U.S. financial system.\16\
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\14\ 12 U.S.C. 5383(b)(1, 2).
\15\ 12 U.S.C. 5383(c)(4)(A).
\16\ See 2012 FSOC Annual Report, Appendix A, at 163 (``a
significant disruption or failure of CME could have a major adverse
impact on the U.S. financial markets, the impact of which would be
exacerbated by the limited number of clearing alternatives currently
available for the products cleared by CME. Accordingly, a failure or
disruption of CME would likely have a significant detrimental effect
on the liquidity of the futures and options markets, clearing
members, which include large financial institutions, and other
market participants, which would, in turn, likely threaten the
stability of the broader U.S. financial system''); id. at 178 (same
for ICE Clear Credit with respect to swaps markets and the broader
U.S. financial system).
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The process for placing a financial company into Title II
Resolution is deliberate and intricate. In the case of a SIDCO, this
would include a written recommendation by each of the FDIC and the
Federal Reserve covering eight statutory factors.\17\ Following that
recommendation, the Secretary of the Treasury would then need to make a
determination, in consultation with the President, that each of seven
statutory factors is met.\18\ Following such a determination, the board
of directors of the financial company may acquiesce or consent to the
appointment of the FDIC as receiver, or there may be a period of
judicial review which may extend to 24 hours.\19\
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\17\ See 12 U.S.C. 5383(a)(1)(A). These include a description of
the effect that the default of the financial company would have on
financial stability in the United States and an evaluation of why a
case under the Bankruptcy Code is not appropriate for the financial
company. See 12 U.S.C. 5383(a)(2).
\18\ See 12 U.S.C. 5383(b). These include that the failure of
the financial company under otherwise applicable Federal or State
law would have serious adverse effects on financial stability in the
United States.
\19\ See 12 U.S.C. 5382(a)(1)(A).
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By contrast, a voluntary petition in bankruptcy commences the case,
which in turn constitutes an order for relief.\20\
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\20\ See 12 U.S.C. 301.
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Accordingly, there exists a possibility that (in the highly
unlikely event that a SIDCO would consider bankruptcy), the SIDCO could
file for bankruptcy before a process to place that SIDCO into a Title
II Resolution would have completed.\21\ While the appointment of the
FDIC as receiver under Title II would automatically result in the
dismissal of the prior bankruptcy,\22\ if the bankruptcy filing were to
immediately and irrevocably result in the termination of the SIDCO's
derivatives contracts with its members, that would undermine the
potential success of any subsequent Title II Resolution.
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\21\ The timeline for an involuntary bankruptcy is longer, in
that it involves a petition, an answer (that the debtor has 21 days
to file), and (if the petition is timely controverted) a trial. See
12 U.S.C. 303 (b, h), Federal Rule of Bankruptcy Procedure 1011(b).
\22\ See 12 U.S.C. 5388(a).
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By contrast, if the FDIC is appointed as receiver in a Title II
Resolution before a SIDCO's derivatives contracts with its members are
terminated as a result of a bankruptcy filing, such termination would
be stayed by operation of Title II until 5:00 p.m. (eastern time) on
the business day following the date of the appointment and, if the FDIC
were to transfer such contracts to, e.g., a bridge entity before that
time, termination based on the insolvency or financial condition of the
SIDCO would be permanently avoided,\23\ again by operation of Title
II.\24\
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\23\ See 12 U.S.C. 5390(c)(10)(B)(i). By contrast, a transfer
within a bankruptcy proceeding (including a ``sale free and clear''
pursuant to 11 U.S.C. 363), would not have the effect of preventing
termination of the contracts.
\24\ As noted above, limitations of termination rights pursuant
to Title II are explicitly made consistent with QMNA status of an
agreement.
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II. Supplemental Proposal
In view of the points raised by commenters on the Proposal and upon
further review of the matter, the Commission is proposing a limited
revision to the Proposal that would (1) stay the termination of SIDCO
contracts for a brief time after bankruptcy in order to foster the
success of a Title II Resolution, if the FDIC is appointed receiver in
such a Resolution within that time, but (2) do so in a manner that does
not undermine the QMNA status of SIDCO rules (the ``Supplemental
Proposal.'') All other aspects of the Proposal remain the same.
Specifically, the Supplemental Proposal would impose a temporary
stay on the termination of derivatives contracts of a SIDCO that is the
subject of a bankruptcy case.\25\ However, that provision would become
effective only if the Commission finds that the Prudential Regulators
have taken steps to make such a stay consistent with the QMNA status of
SIDCO rules. As discussed further below, the Commission is seeking
comment on whether the Supplemental Proposal can reasonably be expected
to achieve both of those goals, is feasible, is the best design for
such a solution, and appropriately reflects consideration of benefits
and costs.
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\25\ Under the Supplemental Proposal, the temporary stay would
not apply in the case of the bankruptcy of a DCO that is not a
SIDCO.
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As noted above, the present regulations of the Prudential
Regulators of the banks and bank holding companies that SIDCO clearing
members may be affiliate with or part of make any stay under Part 190
inconsistent with QMNA status for DCO rules. Thus, to meet the second
goal, the Prudential Regulators must take action sufficient to change
that result.
Following analogous stay provision. The Commission notes that the
regulations of the Prudential Regulators encourage a limited stay
period in certain contexts. For example, 12 CFR 382.4(b)(1) (FDIC)
provides that a covered qualified financial contract (``QFC'') may not
permit the exercise of any default right with respect to the covered
QFC that is related, directly or indirectly, to an affiliate of the
direct party becoming subject to a receivership, insolvency,
liquidation, resolution, or similar proceeding. However, Sec. 382.4(f)
provides that, notwithstanding paragraph (b), under certain
circumstances, a covered QFC may permit the exercise of a default right
after the stay period. The term ``stay period'' is defined in Sec.
382.4(g) as, with respect to a receivership,
[[Page 60113]]
insolvency, liquidation, resolution, or similar proceeding, the period
of time beginning on the commencement of the proceeding and ending at
the later of 5 p.m. (EST) on the business day following the date of the
commencement of the proceeding and 48 hours after the commencement of
the proceeding.\26\
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\26\ Similar provisions are found in the regulations of the
Federal Reserve (see 12 CFR 252.84) and of the OCC (see 12 CFR
47.5).
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While the ``stay period'' in 12 CFR 382.4(g) does not apply to a
contract with a SIDCO (or any other central counterparty (``CCP'')) in
bankruptcy, it would appear more likely that the Prudential Regulators
would be comfortable with--and, thus, willing to make changes to the
QMNA definition that would conform to--a stay period that is of
identical length to a stay period that the Prudential Regulators
already use in another context.
Thus, instead of continued operation for up to six days as
originally proposed, the Supplemental Proposal would provide for the
use of a stay period, applicable to the bankruptcy of a SIDCO, that
would extend for the period of time beginning on the commencement of
the proceeding and ending at the later of 5 p.m. (EST) on the business
day following the date of the commencement of the proceeding and 48
hours after the commencement of the proceeding.
Unlike the original Proposal, there would be no continued
collection or payments of initial or variation margin during the stay
period. Rather, the termination of contracts outstanding at the time of
the order for relief would be stayed for the stay period. To be sure,
risk levels would increase during the stay period, as the design of
CCPs is based on daily collection and payment of variation margin.\27\
However, in a context where the DCO is (based on the prior bankruptcy
filing) already in extremis, and collection and payment of variation
margin is impracticable, such a stay may be the best available
alternative (as compared to an immediate and irrevocable result of
termination of contracts). The Commission notes that this risk is
mitigated, albeit incompletely, by the limited maximum length of the
stay period.\28\
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\27\ See 17 CFR 39.14(b) (requiring daily variation settlement).
Moreover, while no transactions would be entered into during the
stay period, and thus there would be no changes in initial margin
levels due to change in positions, the SIDCO would be unable to
change initial margin levels even if an increase in such levels
would otherwise be warranted.
\28\ The Commission notes that 48 hours/5 p.m. on the next
business day is the maximum length of the stay period. To the extent
that the process of placing the SIDCO into Title II would be
completed sooner, that would further mitigate the impact of not
collecting and paying variation margin.
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Need for a Springing Provision. For the reasons discussed above, in
order to avoid undermining the QMNA status of SIDCO rules, no stay
provision regarding DCO contract termination rules may be made
effective as an element of the DCO bankruptcy provisions of Part 190
unless and until each of the three Prudential Regulators takes action
to make such a stay provision consistent with such QMNA status. The
Commission seeks to complete the work of amending Part 190 in one
coherent rulemaking. Moreover, the inclusion of such a stay provision,
contingent on such action, might encourage the Prudential Regulators
promptly to take such action.
Accordingly, the Supplemental Proposal would provide for the
implementation of a stay provision, as discussed above, applicable to
the bankruptcy of a SIDCO, that would only become effective after each
of the three Prudential Regulators has publically taken action
sufficient to make such a stay provision consistent with the QMNA
status of SIDCO rules. The length of the stay period would be the
shorter of (a) the stay period discussed above (found in, e.g., 12 CFR
382.4(g)) or (b) the shortest such period specified in the action by
any of the Prudential Regulators.
If the Prudential Regulators take such action prior to the
finalization of the rulemaking embodied in the Proposal (as modified by
this Supplemental Proposal), the Commission could implement the stay
period provision as part of that finalization. Otherwise, the stay
period provision would not become effective unless and until the
Commission subsequently issues an Order, confirming that the stay
provision is consistent with the QMNA status of SIDCO rules.\29\ In
either event, before acting to implement a stay provision, the
Commission would issue a request for public comment, limited to the
issue of whether the Prudential Regulators' actions are each sufficient
to make such a stay provision consistent with the QMNA status of SIDCO
rules.\30\
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\29\ Authority to issue such an Order would not be delegated to
staff, and thus would be excluded from the delegation of authority
set forth in proposed Sec. 190.02(b).
\30\ As a practical matter, the Commission expects that before
issuing the request for public comment, there would be contacts by
Commission staff with relevant staff at each of the three Prudential
Regulators confirming understanding of such action.
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In summary, the Commission is withdrawing proposed Sec.
190.14(b)(2) and (3) from the Proposal and instead proposing that the
final amendments to part 190 would contain a regulation with the
following elements:
Subsequent to the order for relief with respect to a
SIDCO, a stay period would apply to the termination of derivatives
contracts outstanding at the time of the order for relief and the
exercise of any other default right. There would be no continued
collection or payments of initial or variation margin during the stay
period.
The length of the stay period would be the shorter of (a)
the period of time beginning on the commencement of the proceeding and
ending at the later of 5 p.m. (EST) on the business day following the
date of the commencement of the proceeding and 48 hours after the
commencement of the proceeding; or (b) the shortest such period
specified in the action by any of the Prudential Regulators.
This aspect of the regulation would not be effective until
the Commission determines (whether as part of finalizing the rulemaking
in the Proposal (as modified by the Supplemental Proposal) or by a
subsequent Order), following public notice and comment, that each of
the three Prudential Regulators has taken action sufficient to make the
stay provision consistent with the QMNA status of SIDCO rules. Public
comment would be limited to whether the Prudential Regulators' actions
are sufficient on that point.
III. Cost-Benefit Considerations
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.\31\ Section 15(a)
further specifies that the costs and benefits shall be evaluated in
light of the following five broad areas of market and public concern:
(1) Protection of market participants and the public; (2) efficiency,
competitiveness, and financial integrity of futures markets; (3) price
discovery; (4) sound risk management practices; and (5) other public
interest considerations. The Commission considers the costs and
benefits resulting from its discretionary determinations with respect
to the section 15(a) factors (collectively referred to herein as
``Section 15(a) Factors'').
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\31\ Section 15(a) of the CEA, 7 U.S.C. 19(a).
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In the Proposal, the Commission proposed amendments to its
regulations governing bankruptcy proceedings of commodity brokers in
part 190. The Proposal provided the public with an opportunity to
comment on the
[[Page 60114]]
Commission's cost-and-benefit considerations of the proposed
amendments, including identification and assessment of any costs and
benefits not discussed therein. In particular, the Commission requested
that commenters provide data or any other information that they believe
supports their positions with respect to the Commission's
considerations of costs and benefits.
Baseline. In this release, the Commission sets out the Supplemental
Proposal described above, and withdraws proposed Sec. 190.14(b) and
(c). All other aspects of the Proposal remain the same. The Proposal
set forth the costs and benefits of the Commission's proposed
amendments of Part 190. All aspects of the Proposal's considerations of
costs and benefits remain the same other than those related
specifically to the Supplemental Proposal. Thus, while the Commission's
practices under existing part 190 serve as the baseline for the
consideration of costs and benefits of the Supplemental Proposal, we
also discuss as appropriate for clarity the differences from the
Proposal. The Commission seeks comment on all aspects of the baseline
laid out above.
The Commission recognizes that the Supplemental Proposal could
create benefits, but also could impose costs. The Commission has
endeavored to assess the expected costs and benefits of the proposed
rulemaking in quantitative terms, but has not found it possible to do
so, and instead has identified and considered the costs and benefits of
the applicable proposed rules in qualitative terms. The lack of data
and information to estimate those costs is attributable in part to the
nature of the Supplemental Proposal, including that it relates to a
situation--the failure of a DCO--that is unprecedented and is
considered to be highly unlikely.
Consideration of benefits and costs. The benefit of the
Supplemental Proposal would be to provide a brief opportunity for a
Title II Resolution of a SIDCO that has filed for bankruptcy to be
initiated without the termination of the outstanding derivatives
contracts. In the event that such a Resolution is initiated during the
stay period, this would mitigate, and possibly avoid, the disruption to
clearing members and clients, and to the U.S. financial system more
broadly, that would result from such termination of the outstanding
contracts. By delaying the effectiveness of this provision until a
Commission Order confirming that the Prudential Regulators had taken
action to make such a stay provision consistent with QMNA status for
the DCO's rules, the Supplemental Proposal would avoid undermining QMNA
status, and thus would avoid increasing capital requirements for bank-
affiliated clearing members.
The Commission does not anticipate material administrative costs
associated with the Supplemental Proposal. Nonetheless, there is at
least one significant cost: For the duration of the stay period,
clearing members and clients will be uncertain whether their contracts
will continue (as part of a Resolution) or be terminated (and thus
would need to be replaced). That uncertainty would mean that clearing
members and clients would be disadvantaged in determining how best to
protect their positions.
The Commission notes that it has considered alternatives to the
Supplemental Proposal. First, the Commission could simply withdraw
proposed Sec. 190.14(b)(2) and (3), and not propose anything
additional. As discussed above, that would permit the immediate and
irrevocable result of the termination of a SIDCO's derivatives
contracts with its members, and that result would undermine the success
of any subsequent Title II Resolution. Second, and proceeding in the
opposite direction, the Commission could propose to make the proposed
solution immediately effective. However, that approach would undermine
QMNA status for DCO rules. Third, the proposed solution could be
extended to all DCOs with respect to potential resolution under Title
II. However, while it is possible that a DCO that has not been
designated as systemically important pursuant to Title VIII of Dodd-
Frank could nonetheless, in the event of its bankruptcy, be found
eligible for Title II Resolution in that the bankruptcy proceeding
would have serious adverse effects on financial stability in the United
States, that is much less likely than in the case of a SIDCO and, in
light of the impact on clearing members and clients, the Commission has
determined not to propose to apply a stay period to DCOs that are not
SIDCOs.
Finally, while the original proposed Sec. 190.14(b)(2) and (3)
would have been applied to cases where a prompt transfer of clearing
operations (including contracts) outside of Title II Resolution might
be facilitated, the Supplemental Proposal does not include transfers
outside of Title II Resolution because, as noted above, such a transfer
would not avoid the effect of a termination provision. Nor does the
Commission anticipate that the Prudential Regulators would be inclined
to permit avoidance of such termination outside the context of a Title
II Resolution.
IV. Request for Comment
The Commission requests comment on all aspects of the Supplemental
Proposal and the issues raised in this document, including in
particular:
(1) Do commenters agree with the concerns identified (or consider
that there are additional or different concerns) with respect to the
status of DCO rules as qualifying master netting agreements for
purposes of bank capital rules?
(2) Does the Supplemental Proposal achieve the goals of fostering
the success of a Title II Resolution while avoiding undermining the
QMNA status of SIDCO rules? Are these the right goals?
(3) Do commenters see a better way to achieve these goals? Do
commenters see specific provisions that should be included in, or
exclude from, the Supplemental Proposal?
(4) Do commenters agree that the Supplemental Proposal should be
limited to SIDCOs (i.e., that it should not be applied to DCOs that are
not SIDCOs)?
(5) The Commission generally requests comment on all aspects of its
cost-benefit considerations, including the identification and
assessment of any costs and benefits not discussed herein; the
potential costs and benefits of the alternatives discussed herein; data
and any other information to assist or otherwise inform the
Commission's ability to quantify or qualitatively describe the costs
and benefits of the proposed solution; and substantiating data,
statistics, and any other information to support positions posited by
commenters with respect to the Commission's discussion. The Commission
welcomes comment on such costs from all members of the public.
Commenters may also suggest other alternatives to the proposed
approaches.
Issued in Washington, DC, on September 18, 2020 by the
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Appendices to Bankruptcy Regulations--Commission Voting Summary and
Commissioner's Statement
Appendix 1--Commission Voting Summary
On this matter, Chairman Tarbert and Commissioners Quintenz,
Behnam, Stump, and Berkovitz voted in the affirmative. No
Commissioner voted in the negative.
[[Page 60115]]
Appendix 2--Statement of Commissioner Dan M. Berkovitz
The part 190 rulemaking supplemental notice of proposed
rulemaking (``Supplemental NPRM'') addresses a potential unintended
outcome of the original NPRM identified in a number of comments on
the proposal. These comments stated that certain provisions in the
original proposed rule related to the bankruptcy of a derivatives
clearing organization (``DCO'') could have significant, unintended
and detrimental impacts on various market participants with
contracts cleared at the DCO. The Supplemental NPRM presents new,
alternative provisions governing DCO bankruptcy that are intended to
avoid these impacts. In issuing the Supplemental NPRM, the
Commission seeks public comment on these alternative provisions.
I support the issuance of this Supplemental NPRM because it will
provide all interested persons with an opportunity to comment on the
alternative provisions formulated by the Commission. This
alternative approach was not set forth in the proposal. Providing
the public with notice and opportunity to comment on rules being
considered by the Commission is not only a basic legal requirement
for agency rulemaking, but it is sound public policy as well. Public
input from all interested persons is critical to sound regulation.
Under the Administrative Procedure Act, the provisions in a
final rule must be reasonably foreseeable and a logical outgrowth of
the provisions in the proposal.\1\ The NPRM must contain more than a
passing reference or question about an issue; the proposal must be
sufficiently descriptive for members of the public to evaluate and
comment on the approach being considered. The Supplemental NPRM
meets that standard.
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\1\ See, e.g., Idaho Farm Bureau Fed'n v. Babbitt, 58 F.3d 1392,
1402-03 (9th Cir. 1995).
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I look forward to reviewing all perspectives on these
alternative provisions.
[FR Doc. 2020-21005 Filed 9-23-20; 8:45 am]
BILLING CODE 6351-01-P