Statement of Chairman Heath P. Tarbert in Support of Foreign Clearinghouse Registration Exemption Framework
November 18, 2020
We are voting to approve a rule proposed in 2018 that codifies existing staff guidance by which the CFTC exempts derivatives clearing organizations (DCOs) from registration for the clearing of swaps. Pursuant to that guidance, we have exempted four clearinghouses that we determined are subject to “comparable, comprehensive supervision and regulation” by the clearing organization’s home country regulator. Codifying this framework through a notice-and-comment rulemaking is, frankly, good government. And doing so is in keeping with my recent directive on the use of staff letters and guidance, in which I noted that staff guidance and letters should supplement rulemakings, rather than themselves function as rules. This approach has many benefits, including providing increased transparency. It also furthers our strategic objective of enhancing the regulatory experience for market participants at home and abroad.
This rulemaking is a modest first step. As is the case in the existing staff guidance, the rule does not permit exempt DCOs to clear for U.S. customers, but rather only for proprietary swap transactions for U.S. clearing members and futures commission merchants (FCMs). It reflects the CFTC’s continued efforts to foster cross-border cooperation and show deference to home country regulation that is deemed comparable to our own regulations.
In 2019, the Commission issued a supplemental proposal that would have gone further and permitted exempt DCOs to clear swaps for U.S. eligible contract participants (ECPs) through foreign intermediaries. I would have supported finalizing that proposal for two reasons. First, the proposal would have provided greater flexibility and choice to our most sophisticated U.S. customers—ECPs—to access swaps cleared at non-U.S. clearinghouses. This would have given these sophisticated counterparties access to foreign-currency denominated instruments traded overseas that would enable them to hedge their various risks on a global basis. Second, exempting clearinghouses that do not pose a substantial risk to the U.S. financial system is consistent with principles of international comity.
Because we have not worked through all the issues raised by the 2019 supplemental proposal to the satisfaction of our Commission, today we are adopting only the 2018 proposal. Nonetheless, I support continued discussion on whether to permit Exempt DCOs additionally to clear certain non-U.S.-dollar denominated swaps for U.S. customers who are ECPs, either directly through foreign intermediaries or through U.S. FCMs. Although registration as a DCO—under either our traditional or recently-established alternative framework—should be the preferred route for most non-U.S. clearinghouses, there are likely circumstances where U.S. customers would benefit from access to additional risk-mitigating instruments offered overseas.
 See Exemption From Derivatives Clearing Organization Registration, 83 FR 39923 (Aug. 13, 2018). The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376, amended the Commodity Exchange Act (CEA) to permit the Commission to exempt conditionally or unconditionally a DCO from registration for the clearing of swaps if the Commission determines that the clearing organization is subject to “comparable, comprehensive supervision and regulation” by appropriate government authorities in the clearing organization’s home country. See Section 5b(a) of the CEA, 7 U.S.C. § 7a-1(a).
 See Amended Order of Exemption from Registration (Jan. 28, 2016) (ASX Clear (Futures) Pty Limited), available at: https://www.cftc.gov/sites/default/files/idc/groups/public/@otherif/documents/ifdocs/asxclearamdorderdcoexemption.pdf; Amended Order of Exemption from DCO Registration (May 15, 2017) (Japan Securities Clearing Corporation), available at: https://www.cftc.gov/sites/default/files/idc/groups/public/@otherif/documents/ifdocs/jsccdcoexemptamdorder5-15-17.pdf; Order of Exemption from DCO Registration (Oct. 26, 2015) (Korea Exchange, Inc.), available at: https://www.cftc.gov/sites/default/files/idc/groups/public/@otherif/documents/ifdocs/krxdcoexemptorder10-26-15.pdf; and Order of Exemption from DCO Registration (Dec. 21, 2015) (OTC Clearing Hong Kong Limited), available at: https://www.cftc.gov/sites/default/files/idc/groups/public/@otherif/documents/ifdocs/otccleardcoexemptorder12-21-15.pdf.
 See Directive of Chairman Heath P. Tarbert on the Use of Staff Letters and Guidance (Oct. 27, 2020), available at: https://www.cftc.gov/PressRoom/SpeechesTestimony/tarbetstatement102720.
 See Exemption From Derivatives Clearing Organization Registration, 84 FR 35456 (July 23, 2019).
 See Registration With Alternative Compliance for Non-U.S. Derivatives Clearing Organizations, 85 FR 67160 (Oct. 21, 2020).