Concurring Statement of Commissioner Caroline D. Pham Regarding Proposed Swap Dealer Capital and Financial Reporting Comparability Determination
July 27, 2022
I respectfully concur with the notice of proposed order and request for comment on an application for a capital comparability determination submitted by the Financial Services Agency (FSA) of Japan.
First, I want to recognize the staff’s work as each of my fellow Commissioners has done because this is not easy—not only for this rulemaking, but also, generally speaking, swap dealer oversight is an incredibly complex regulatory regime. I also appreciate your commitment to providing substituted compliance.
In addition, in my past work in Japan and with their financial sector, I have enjoyed working with the FSA for many years, and I appreciate their thoughtful and robust oversight of their regulated firms. I also want to say that my thoughts and heart are with the people of Japan regarding the tragic loss of Prime Minister Shinzo Abe.
As I mentioned in my opening statement, the CFTC should take an outcomes-based approach to substituted compliance that appropriately balances and recognizes the nature of cross-border regulation of global markets and firms, and that preserves access for U.S. persons to other markets. I appreciate the Chairman's remarks and I welcome comments, particularly on operational issues with additional reporting requirements given the time difference, language translation, conversion to USD, local governance and regulatory requirements, and differences in financial reporting.
I urge a pragmatic approach with sufficient time to implement conditions before any compliance date, and I appreciate the thought that the staff have been putting into that. I speak from my past experience as a global head of swap dealer compliance who had to implement global regulatory reforms. I'll also note that in a crisis, such as during the early days of the COVID-19 pandemic, there was timely and effective engagement between and amongst CFTC registrants and U.S. regulators. I have been on many calls and spoken to many regulators all over the world, not only during COVID-19, but also during times of market disruption or potentially material events.
There is a difference between a phone call and a formal written notice, and that’s just one example of the conditions in this proposal. So, I appreciate receiving comments on this and any other operational issues and the careful consideration by the staff and the Commission of how to take a practical approach to achieving appropriate oversight and mitigation of risk to the United States and to our markets.
 See Statement of Dissent by Commissioner Scott D. O’Malia on Comparability Determinations for Australia, Canada, the European Union, Hong Kong, Japan, and Switzerland: Certain Entity and Transaction-Level Requirements (Dec. 20, 2013).