Exemption From Registration for Certain Foreign Persons, 63976-63979 [E7-22110]
Download as PDF
63976
Federal Register / Vol. 72, No. 219 / Wednesday, November 14, 2007 / Rules and Regulations
Authority: Pub. L. 106–51, 113 Stat. 252
(15 U.S.C. 1841 note).
Washington, DC 20581. Electronic mail:
lpatent@cftc.gov or achapin@cftc.gov.
SUPPLEMENTARY INFORMATION:
2. Section 400.103 is revised to read
as follows:
I
§ 400.103
I. Background
Offices.
The principal offices of the Board are
in the U.S. Department of Commerce,
Washington, DC 20230.
[FR Doc. E7–22253 Filed 11–13–07; 8:45 am]
BILLING CODE 3510–NB–P
COMMODITY FUTURES TRADING
COMMISSION
17 CFR Parts 1, 3, 4, 15, and 166
RIN 3038–AC26
Exemption From Registration for
Certain Foreign Persons
Commodity Futures Trading
Commission.
ACTION: Final rule.
AGENCY:
SUMMARY: The Commodity Futures
Trading Commission (‘‘Commission’’)
has amended Commission Regulation
3.10 concerning the registration of firms
located outside the U.S. that are engaged
in intermediating commodity interest
transactions on U.S. designated contract
markets (‘‘DCMs’’) and U.S. derivative
transaction execution facilities
(‘‘DTEFs’’).1 The amended regulation
codifies past actions of the Commission
or its staff to permit certain foreign firms
that limit their customers to foreign
customers, and submit U.S. DCM and
DTEF business on behalf of those
customers for clearing on an omnibus
basis through a registered futures
commission merchant (‘‘FCM’’), to be
exempt from registration as an FCM
pursuant to section 4d of the
Commodity Exchange Act (‘‘Act’’). The
amended regulation similarly extends
the relief from registration to those
foreign persons acting in the capacity of
an introducing broker (‘‘IB’’),
commodity trading advisor (‘‘CTA’’) and
commodity pool operator (‘‘CPO’’)
solely on behalf of foreign customers.
DATES: Effective Date: December 14,
2007.
rmajette on PROD1PC64 with RULES
FOR FURTHER INFORMATION CONTACT:
Lawrence B. Patent, Deputy Director, or
Andrew V. Chapin, Special Counsel, at
(202) 418–5430, Division of Clearing
and Intermediary Oversight, Commodity
Futures Trading Commission, Three
Lafayette Centre, 1155 21st Street, NW.,
1 Commission regulations referred to herein are
found at 17 CFR Ch. I (2007). References to trading
on U.S. DCMs or DTEFs shall include trading that
is subject to the rules of such entities as well.
VerDate Aug<31>2005
14:53 Nov 13, 2007
Jkt 214001
The Commission published for
comment on April 2, 2007 proposed
amendments to Commission Regulation
3.10 (‘‘the Proposal’’) 2 to clarify when
certain persons located outside the U.S.
may conduct commodity interest
activities with respect to U.S. markets
on behalf of customers located outside
the U.S. without having to register in
the appropriate capacity with the
Commission. In particular, the
Commission proposed to exempt from
registration as an FCM certain foreign
firms that limit their customers to
foreign customers and submit U.S. DCM
and DTEF business on behalf of those
customers for clearing on an omnibus
basis through a registered FCM. These
firms were referred to in the Proposal as
‘‘foreign brokers.’’ The Commission also
proposed to create a single definition of
‘‘foreign broker’’ and ‘‘commodity
interest’’ consistent with the Proposal.
Part 3 of the Commission’s regulations
governs the registration of
intermediaries engaged in the offer and
sale of, and providing advice
concerning, futures and commodity
options traded on U.S. markets,
including both DCMs and DTEFs. In
particular, Regulation 3.10 sets forth the
manner in which FCMs, IBs, CTAs,
CPOs, and leverage transaction
merchants must apply for registration
with the Commission. Regulation
3.10(c) also provides an exemption from
registration for certain persons.
Currently, the only exemption from
registration as an FCM is for any person
trading solely for proprietary accounts,
as defined in Regulation 1.3(y).
As explained in the Proposal, the
Commission sought to provide clarity to
its registration requirements under Part
3 by codifying the longstanding
Commission policy, known as the
‘‘foreign broker exemption,’’ regarding
the activities of certain foreign
intermediaries engaged in soliciting or
accepting commodity interest
transactions solely on behalf of
customers located outside the U.S. In
particular, the Commission proposed to
exempt from registration as an FCM any
person that (1) limits its customers to
customers located outside the U.S., (2)
confines its commodity interest
activities to areas outside the U.S, and
(3) submits its trades for clearing on an
omnibus basis through a registered
FCM.
2 72
PO 00000
FR 15637 (April 2, 2007).
Frm 00010
Fmt 4700
Sfmt 4700
II. Comments Regarding the Proposal
The Commission received two
comment letters on the Proposal, one
from the National Futures Association
(‘‘NFA’’) and one from the Futures
Industry Association (‘‘FIA’’). Both NFA
and FIA supported the Commission’s
initiative to codify the foreign broker
exemption as a means to provide greater
legal certainty to futures industry
participants. However, FIA commented
that the effect of the Proposal would be
to extend the Commission’s regulatory
requirements over the activities of
foreign brokers, rather than simply
codify the Commission’s existing policy.
In particular, FIA stated that, as
proposed, amended Regulation
3.10(c)(2)(ii) would subject foreign
brokers to the full panoply of
Commission regulations applicable to
registered FCMs, such as requirements
regarding fitness, customer funds
segregation, and regulatory capital.3 As
such, FIA recommended that the
Commission revise the proposed
amendment to Regulation 3.10(c) to
limit the extent to which the provisions
of the Act and Commission regulations
apply in a manner consistent with the
Commission’s longstanding policy
towards foreign brokers. In support of
its request, FIA noted that the
Commission has recognized that a
foreign broker holding a customer
omnibus account with a registered FCM
does not implicate the same regulatory
concerns as a foreign broker that has
more direct contact with U.S. markets,
such as a registered FCM clearing on a
DCM or DTEF.4
Additionally, both FIA and NFA
recommended that the Commission
provide greater legal certainty to futures
industry participants by similarly
codifying existing Commission policy
with respect to registration exemptions
for other foreign intermediaries, i.e., IBs,
CTAs and CPOs, that are not engaged in
commodity interest activities on behalf
of U.S. customers. In support of its
request, FIA referred to the Federal
Register release issued by the
Commission promulgating final rules
establishing the registration
requirements and procedures for
introducing brokers and other futures
industry professionals. In that release,
the Commission stated that:
given this agency’s limited resources, it is
appropriate at this time to focus [the
3 Proposed Regulation 3.10(c)(2)(ii) provided that
a foreign broker acting in accordance with the
codified foreign broker exemption ‘‘remains subject
to all other provisions of the Act and of the rules,
regulations, and orders thereunder.’’ (emphasis
added).
4 See, e.g., 72 FR at 15639 (April 2, 2007).
E:\FR\FM\14NOR1.SGM
14NOR1
Federal Register / Vol. 72, No. 219 / Wednesday, November 14, 2007 / Rules and Regulations
Commission’s] customer protection activities
upon domestic firms and upon firms
soliciting or accepting orders from domestic
users of the futures markets and that the
protection of foreign customers of firms
confining their activities to areas outside this
country, its territories, and possessions may
best be for local authorities in such areas.5
rmajette on PROD1PC64 with RULES
Accordingly, FIA requested that the
Commission amend its regulations to
provide an exemption from registration
to any foreign person engaged in the
activity of an IB solely on behalf of
customers located outside the U.S.
Similarly, NFA referred to the noaction position taken by the
Commission’s Office of General Counsel
stating that: (1) A person who operates
a commodity pool outside of the
territorial U.S. is not required to register
as a CPO when such a person confines
the pool activities to areas outside the
territorial U.S., none of the participants
in the pool is a resident or citizen of the
U.S., and none of the funds or capital
contributed to the pool is from U.S.
sources; and (2) a trading advisor
located outside the territorial U.S. who
provides advice as to the advisability of
trading futures contracts on domestic
and foreign exchanges is not required to
register when such a person confines its
advisory services to areas outside of the
territorial U.S., and none of its clients is
a citizen or resident of the U.S.6
Accordingly, NFA requested that the
Commission amend its regulations to
provide an exemption from registration
for any foreign person acting in the
capacity of a CTA or CPO solely on
behalf of customers located outside the
U.S.
Consistent with this request, NFA
further requested that the Commission
amend Regulation 3.12(h) to create an
exemption from registration as an
associated person for any individual
located in the branch office of a
Commission registrant that does not
solicit or accept orders from customers
located in the U.S.
The Commission did not receive any
comments regarding its proposal to
revise and reserve certain regulations to
provide a single definition for ‘‘foreign
broker’’ and ‘‘commodity interest’’ that
would apply to all of its regulations.
III. Final Regulations
As set forth in the Proposal, the
Commission believes it is appropriate to
amend its regulations to provide greater
legal certainty with respect to the
commodity interest activities on behalf
of non-U.S. customers that are
5 48
FR 35248, 35261 (August 3, 1983).
6 CFTC Staff Letter 76–21, [1975–1977 Transfer
Binder] Comm. Fut. L. Rep. (CCH) ¶ 20,222 (August
15, 1976).
VerDate Aug<31>2005
14:53 Nov 13, 2007
Jkt 214001
undertaken on U.S. markets by persons
located outside the U.S. It was the
Commission’s intent to codify its
longstanding policy, and not to extend
the scope of its regulations with respect
to foreign brokers or other foreign
intermediaries. As one of the
commenters noted, transactions
solicited or accepted by foreign brokers
on behalf of non-U.S. customers for
trading on U.S. markets directly
implicate the pricing and hedging
functions of the domestic markets, as
would be the case for an entirely
domestic transaction.7 The Commission
believes that the presence of a registered
FCM in the clearing process obviates the
need for a foreign broker to comply with
the full panoply of Commission
regulations applicable to registered
FCMs. A registered FCM clearing a
transaction on a DCM or DTEF, among
other requirements, must satisfy the
fitness standards administered by NFA
and the minimum capital requirements
set forth in Commission Regulation
1.17, as well as comply with the
requirements regarding the segregation
of customer funds set forth in section 4d
of the Act.
In light of the comments received and
its own reconsideration of the issues
involved, the Commission has
determined to amend Regulation 3.10
with certain revisions to the Proposal.
As amended, Regulation 3.10 will
specify that a foreign broker is not
required to register as an FCM if it: (1)
Limits its customers to customers
located outside the U.S., (2) confines its
commodity interest activities to areas
outside the U.S, and (3) submits its
trades for clearing on an omnibus basis
through a registered FCM. A foreign
broker will remain subject to existing
provisions applicable to the activities of
a foreign broker, including Parts 15 to
21 of the Commission’s regulations
regarding large trader reporting,8 and
Regulation 1.58 regarding gross
collection of exchange-set margin.
Conversely, a foreign broker will not be
subject to any provisions of the Act or
Commission rules, regulations and
orders thereunder applicable solely to a
7 See Tamari v. Bache & Co., 730 F.2d 1103, 1108
(7th Cir. 1984), cert. denied, 469 U.S. 871 (1984)
(holding that a U.S. federal district court had
subject matter jurisdiction under the Act over a
cause of action arising from trading on U.S.
exchanges, even though the parties were located
outside the U.S. and contacts between them
occurred in a foreign country).
8 See, e.g., Regulation 15.05, which states that,
absent an existing agency agreement between a
foreign broker and another U.S. person, an FCM is
designated as the agent of a foreign broker for
purposes of accepting delivery and service issued
to the foreign broker by the Commission. The
agency requirement similarly applies to any IB who
introduces such an account to an FCM.
PO 00000
Frm 00011
Fmt 4700
Sfmt 4700
63977
registered FCM or to any person
required to be so registered. For
example, a foreign broker will not be
required to comply with the minimum
financial requirements or requirements
regarding the segregation of customer
funds, reporting or disclosure to
customers, and related recordkeeping
pertaining to the foregoing
requirements. However, the provisions
of the Act and Commission regulations
applicable to ‘‘any person’’ will apply to
a foreign broker, such as those
prohibiting fraud or manipulation by a
foreign broker trading for its own
account.
The Commission also has determined
to adopt new Regulation 3.10(c)(3) to
provide an exemption from registration
to other foreign intermediaries acting
solely on behalf of customers located
outside the U.S. In particular, the
Commission is adopting new Regulation
3.10(c)(3)(i) to provide an exemption
from registration for any foreign person
acting in the capacity of an IB, CTA or
CPO solely with the respect to
customers located outside the U.S.,
provided that all commodity interest
transactions are submitted for clearing
to a registered FCM. A foreign person
acting in the capacity of a CTA or CPO
will remain subject to the antifraud
prohibition of section 4o of the Act.
Otherwise, consistent with the revised
regulation applicable to foreign brokers,
new Regulation 3.10(c)(3)(ii) states that
any foreign person acting in accordance
with this registration exemption is not
required to comply with those
provisions of the Act and of the rules,
regulations and orders thereunder
applicable solely to any person
registered in such capacity, or any
person required to be so registered.
Consistent with the amendments
applicable to foreign intermediaries, the
Commission also has determined to
amend Regulation 3.12 to provide an
exemption from AP registration for any
foreign individual located in the foreign
branch office of a Commission registrant
that engages in any activity as an AP, as
defined in Regulation 1.3(aa), solely on
behalf of customers located outside the
U.S.9 A person exempt from AP
registration pursuant to this provision
may not supervise other individuals
engaged in the solicitation of customers
located in the U.S. for trading on a DCM
or DTEF.
Any person seeking to act in
accordance with any of the foregoing
exemptions from registration should
9 Supra, n. 5. Regulation 1.3(aa) defines
‘‘associated person’’ to mean a natural person
engaged in the solicitation or acceptance of
customer orders, or the supervision of any person
or persons so engaged.
E:\FR\FM\14NOR1.SGM
14NOR1
63978
Federal Register / Vol. 72, No. 219 / Wednesday, November 14, 2007 / Rules and Regulations
note that the prohibition on contact
with U.S. customers applies to
solicitation as well as acceptance of
orders. If a person located outside the
U.S. were to solicit prospective
customers located in the U.S. as well as
outside of the U.S., these exemptions
would not be available, even if the only
customers resulting from the efforts
were located outside the U.S.10
The Commission’s adoption of these
rule amendments supersedes prior staff
positions on these subjects. Because the
rule amendments contain no substantive
changes to prior staff letters, no party
should be disadvantaged. The new
regulations will make these staff
positions more accessible and widely
understood and obviate the need for
individual relief.
IV. Related Matters
A. Administrative Procedure Act
The Administrative Procedure Act
generally requires that, before an agency
adopts a rule, the agency provide an
opportunity for notice and comment
thereon. That opportunity is not
required, however, when the agency for
good cause finds such procedure
unnecessary. The Commission has
determined to amend Regulation 1.55(f)
without opportunity for notice or
comment. Notice and comment is
unnecessary in this instance because the
amendment to Regulation 1.55(f) solely
corrects the reference to the citation for
‘‘institutional customer’’ in Regulation
1.3.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act
(‘‘RFA’’), 5 U.S.C. 601–611, requires that
agencies, in proposing regulations,
consider the impact of those regulations
on small businesses. The Commission
has previously established certain
definitions of ‘‘small entities’’ to be used
by the Commission in evaluating the
impact of its regulations on such entities
rmajette on PROD1PC64 with RULES
10 A
person wishing to act as an intermediary for
security futures transactions on a U.S. DCM or
DTEF may notice register as a securities brokerdealer (‘‘BD’’) if it is registered as an FCM or IB and
is a member of NFA. See Section 15(b)(11) of the
Securities Exchange Act (15 U.S.C. 78o(b)(11)) and
17 CFR 240.15b11–1. Foreign brokers taking
advantage of the exemption from registration under
the Act discussed herein would not qualify for
notice registration as BDs. Accordingly, if such
foreign brokers want to solicit or accept orders for
security futures products traded on U.S. DCMs or
DTEFs, they must fully register as BDs in
accordance with Section 15(b)(1) of the Securities
Exchange Act and regulations thereunder, unless
other relief from such registration is available.
Foreign brokers may wish to consult the U.S.
Securities and Exchange Commission (‘‘SEC’’) and/
or private counsel regarding how taking advantage
of this relief might affect their registration status
with the SEC.
VerDate Aug<31>2005
14:53 Nov 13, 2007
Jkt 214001
in accordance with the RFA.11 The
Commission previously has determined
that registered FCMs are not small
entities for the purpose of the RFA
because each FCM has an underlying
fiduciary relationship with its
customers, regardless of the size of the
FCM.12 The Commission notes that
certain foreign persons affected by the
changes to the Commission’s regulations
would be registered as FCMs if not for
the exemption provided therein and, as
such, would maintain a fiduciary
relationship with customers similar to
the relationship maintained by each
registered FCM. The Commission also
previously has determined that
registered CPOs are not small entities
for the purpose of the RFA.13
Other foreign persons affected by the
changes would be registered as IBs and
CTAs if not for the exemption provided
therein. The Commission has stated that
it would evaluate within the context of
a particular rule whether all or some
affected IBs and CTAs would be
considered to be small entities and, if
so, the economic impact on them of any
rule.14 Although certain foreign IBs and
CTAs might be small entities for
purposes of the rule, the amended rules
will reduce the regulatory burden on all
foreign IBs and CTAs.
Therefore, the Acting Chairman, on
behalf of the Commission, hereby
certifies, pursuant to 5 U.S.C. 605(b),
that these regulations will not have a
significant economic impact on a
substantial number of small entities. No
comment was received regarding the
impact of these amendments on small
businesses.
C. Paperwork Reduction Act
As required by the Paperwork
Reduction Act of 1995,15 the
Commission submitted a copy of the
proposed rule amendments to the Office
of Management and Budget for its
review. The Commission did not receive
any public comments relative to its
analysis of paperwork burdens
associated with this rulemaking.
D. Costs and Benefits Analysis
Section 15(a) of the Act requires the
Commission to consider the costs and
benefits of its actions before issuing new
regulations under the Act. By its terms,
Section 15(a) does not require the
Commission to quantify the costs and
benefits of new regulations or to
determine whether the benefits of the
11 47
FR 18618–18621 (April 30, 1982).
FR 18619–18620.
13 47 FR 18619–18620.
14 47 FR 18618–18620; see also 48 FR at 35276
(August 3, 1983).
15 Pub. L. 104–13 (May 13, 1995).
12 47
PO 00000
Frm 00012
Fmt 4700
Sfmt 4700
regulations outweigh their costs. Rather,
Section 15(a) requires the Commission
to ‘‘consider the cost and benefits’’ of
the subject regulations.
The Commission published an
analysis of costs and benefits when it
proposed the rule amendments that it is
now adopting.16 It did not receive any
public comments pertaining to the
analysis.
List of Subjects
17 CFR Part 1
Definitions, Registration, Minimum
financial and reported requirements,
Prohibited transactions in commodity
options, Customers’ money, securities
and property, Miscellaneous.
17 CFR Part 3
Definitions, Foreign futures,
Consumer protection, Foreign options,
Registration requirements.
17 CFR Part 4
Advertising, Commodity futures,
Consumer protection, Recordkeeping
and reporting requirements.
17 CFR Part 15
Brokers, Reporting and recordkeeping
requirements.
17 CFR Part 166
Authorization to trade, Customer
protection.
I In consideration of the foregoing, and
pursuant to the authority contained in
the Commodity Exchange Act and, in
particular, Sections 2(a)(1), 4(b), 4c and
8a thereof, 7 U.S.C. 2, 6(b), 6c and 12a
(1982), and pursuant to the authority
contained in 5 U.S.C. 552 and 552b
(1982), the Commission hereby amends
Chapter I of Title 17 of the Code of
Federal Regulations as follows:
PART 1—GENERAL REGULATIONS
UNDER THE COMMODITY EXCHANGE
ACT
1. The authority citation for part 1
continues to read as follows:
I
Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c,
6d, 6e, 6f, 6g, 6h, 6i, 6j, 6k, 6l, 6m, 6n, 6o,
6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a, 13a–1,
16, 16a, 19, 21, 23, and 24, unless otherwise
noted.
2. Section 1.3 is amended by adding
paragraphs (xx) and (yy) to read as
follows:
I
§ 1.3
Definitions.
*
*
*
*
*
(xx) Foreign Broker. This term means
any person located outside the United
States, its territories or possessions who
16 72
E:\FR\FM\14NOR1.SGM
FR at 15640 (April 2, 2007).
14NOR1
Federal Register / Vol. 72, No. 219 / Wednesday, November 14, 2007 / Rules and Regulations
is engaged in soliciting or in accepting
orders only from persons located
outside the United States, its territories
or possessions for the purchase or sale
of any commodity interest transaction
on or subject to the rules of any
designated contract market or
derivatives transaction execution
facility and that, in or in connection
with such solicitation or acceptance of
orders, accepts any money, securities or
property (or extends credit in lieu
thereof) to margin, guarantee, or secure
any trades or contracts that result or
may result therefrom.
(yy) Commodity Interest. This term
means:
(1) Any contract for the purchase or
sale of a commodity for future delivery;
and
(2) Any contract, agreement or
transaction subject to Commission
regulation under section 4c or 19 of the
Act.
I 3. Section 1.55 is amended by revising
paragraph (f) to read as follows:
§ 1.55 Distribution of ‘‘Risk Disclosure
Statement’’ by futures commission
merchants and introducing brokers.
*
*
*
*
*
(f) A futures commission merchant or,
in the case of an introduced account, an
introducing broker, may open a
commodity futures account for an
‘‘institutional customer’’ as defined in
§ 1.3(g) without furnishing such
institutional customer the disclosure
statements or obtaining the
acknowledgments required under
paragraph (a) of this section §§ 1.33(g)
and 1.65(a)(3), and §§ 30.6(a), 33.7(a),
155.3(b)(2), 155.4(b)(2) and 190.10(c) of
this chapter.
*
*
*
*
*
§ 1.56
[Amended]
4. Section 1.56 is amended by
removing and reserving paragraph (a).
I
PART 3—REGISTRATION
5. The authority citation for part 3
continues to read as follows:
I
Authority: 5 U.S.C. 522, 522b; 7 U.S.C. 1a,
2, 4, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h, 6i, 6k,
6m, 6n, 6o, 6p, 8, 9, 9a, 12, 12a, 13b, 13c,
16a, 18, 19, 21, 23, unless otherwise noted.
§ 3.1
[Amended]
6. Section 3.1 is amended by
removing and reserving paragraph (f).
I 7. Section 3.10 is amended by revising
paragraph (c) to read as follows:
rmajette on PROD1PC64 with RULES
I
§ 3.10 Registration of futures commission
merchants, introducing brokers, commodity
trading advisors, commodity pool operators
and leverage transaction merchants.
*
*
*
VerDate Aug<31>2005
*
*
14:53 Nov 13, 2007
Jkt 214001
(c) Exemption from registration for
certain persons. (1) A person trading
solely for proprietary accounts, as
defined in § 1.3(y) of this chapter, is not
required to register as a futures
commission merchant: Provided, that
such person remains subject to all other
provisions of the Act and of the rules,
regulations and orders thereunder.
(2)(i) A foreign broker, as defined in
§ 1.3(xx) of this chapter, is not required
to register as a futures commission
merchant if it submits any commodity
interest transactions executed on or
subject to the rules of designated
contract market or derivatives
transaction execution facility for
clearing on an omnibus basis through a
futures commission merchant registered
in accordance with section 4d of the
Act.
(ii) A foreign broker acting in
accordance with paragraph (c)(2)(i) of
this section is not required to comply
with those provisions of the Act and of
the rules, regulations and orders
thereunder applicable solely to any
registered futures commission merchant
or any person required to be so
registered.
(3)(i) A person located outside the
United States, its territories or
possessions engaged in the activity of:
An introducing broker, as defined in
§ 1.3(mm) of this chapter; a commodity
trading advisor, as defined in § 1.3(bb)
of this chapter; or a commodity pool
operator, as defined in § 1.3(nn) of this
chapter, in connection with any
commodity interest transaction made on
or subject to the rules of any designated
contract market or derivatives
transaction execution facility only on
behalf of persons located outside the
United States, its territories or
possessions, is not required to register
in such capacity: Provided, that any
such commodity interest transaction
executed on or subject to the rules of
designated contract market or
derivatives transaction execution
facility is submitted for clearing through
a futures commission merchant
registered in accordance with section 4d
of the Act.
(ii) A person acting in accordance
with paragraph (c)(3)(i) of this section
remains subject to section 4o of the Act,
but otherwise is not required to comply
with those provisions of the Act and of
the rules, regulations and orders
thereunder applicable solely to any
person registered in such capacity, or
any person required to be so registered.
*
*
*
*
*
I 8. Section 3.12 is amended by
removing ‘‘or’’ at the end of paragraph
(h)(1)(ii), removing the period and
PO 00000
Frm 00013
Fmt 4700
Sfmt 4700
63979
adding a semi-colon and ‘‘or’’ at the end
of paragraph (h)(1)(iii)(D), and adding
paragraph (h)(1)(iv) to read as follows:
§ 3.12 Regulation of associated persons of
futures commission merchants, introducing
brokers, commodity trading advisors,
commodity pool operators and leverage
transaction merchants.
*
*
*
*
*
(h) * * *
(1) * * *
(iv) Engaged in any activity as an
associated person, as defined in § 1.3(aa)
of this chapter, from a location outside
the United States, its territories or
possessions, and limits such activities to
customers located outside the United
States, its territories or possessions.
*
*
*
*
*
PART 4—COMMODITY POOL
OPERATORS AND COMMODITY
TRADING ADVISORS
9. The authority citation for part 4
continues to read as follows:
I
Authority: 7 U.S.C. 1a, 2, 4, 6(c), 6b, 6c, 6l,
6m, 6n, 6o, 12a and 23.
§ 4.10
[Amended]
10. Section 4.10 is amended by
removing and reserving paragraph (a).
I
PART 15—REPORTS—GENERAL
PROVISIONS
11. The authority citation for part 15
continues to read as follows:
I
Authority: 7 U.S.C. 2, 5, 6(c), 6a, 6c(a)–(d),
6f, 6g, 6i, 6k, 6m, 6n, 7, 9, 12a, 19 and 21,
as amended by the Commodity Futures
Modernization Act of 2000, Appendix E of
Pub. L. 106–554, 114 Stat. 2763 (2000).
§ 15.00
[Amended]
12. Section 15.00 is amended by
removing and reserving paragraph (g).
I
PART 166—CUSTOMER PROTECTION
RULES
13. The authority citation for part 166
continues to read as follows:
I
Authority: 7 U.S.C. 1a, 2, 6b, 6c, 6d, 6g, 6h,
6k, 6l, 6o, 7, 12a, 21, and 23, as amended by
the Commodity Futures Modernization Act of
2000, Appendix E of Pub. L. 106–554, 114
Stat. 2763 (2000).
§ 166.1
[Amended]
14. Section 166.1 is amended by
removing and reserving paragraph (b).
I
Dated: November 7, 2007.
By the Commission.
David Stawick,
Secretary of the Commission.
[FR Doc. E7–22110 Filed 11–13–07; 8:45 am]
BILLING CODE 6351–01–P
E:\FR\FM\14NOR1.SGM
14NOR1
Agencies
[Federal Register Volume 72, Number 219 (Wednesday, November 14, 2007)]
[Rules and Regulations]
[Pages 63976-63979]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-22110]
=======================================================================
-----------------------------------------------------------------------
COMMODITY FUTURES TRADING COMMISSION
17 CFR Parts 1, 3, 4, 15, and 166
RIN 3038-AC26
Exemption From Registration for Certain Foreign Persons
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commodity Futures Trading Commission (``Commission'') has
amended Commission Regulation 3.10 concerning the registration of firms
located outside the U.S. that are engaged in intermediating commodity
interest transactions on U.S. designated contract markets (``DCMs'')
and U.S. derivative transaction execution facilities (``DTEFs'').\1\
The amended regulation codifies past actions of the Commission or its
staff to permit certain foreign firms that limit their customers to
foreign customers, and submit U.S. DCM and DTEF business on behalf of
those customers for clearing on an omnibus basis through a registered
futures commission merchant (``FCM''), to be exempt from registration
as an FCM pursuant to section 4d of the Commodity Exchange Act
(``Act''). The amended regulation similarly extends the relief from
registration to those foreign persons acting in the capacity of an
introducing broker (``IB''), commodity trading advisor (``CTA'') and
commodity pool operator (``CPO'') solely on behalf of foreign
customers.
---------------------------------------------------------------------------
\1\ Commission regulations referred to herein are found at 17
CFR Ch. I (2007). References to trading on U.S. DCMs or DTEFs shall
include trading that is subject to the rules of such entities as
well.
---------------------------------------------------------------------------
DATES: Effective Date: December 14, 2007.
FOR FURTHER INFORMATION CONTACT: Lawrence B. Patent, Deputy Director,
or Andrew V. Chapin, Special Counsel, at (202) 418-5430, Division of
Clearing and Intermediary Oversight, Commodity Futures Trading
Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington,
DC 20581. Electronic mail: lpatent@cftc.gov or achapin@cftc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Commission published for comment on April 2, 2007 proposed
amendments to Commission Regulation 3.10 (``the Proposal'') \2\ to
clarify when certain persons located outside the U.S. may conduct
commodity interest activities with respect to U.S. markets on behalf of
customers located outside the U.S. without having to register in the
appropriate capacity with the Commission. In particular, the Commission
proposed to exempt from registration as an FCM certain foreign firms
that limit their customers to foreign customers and submit U.S. DCM and
DTEF business on behalf of those customers for clearing on an omnibus
basis through a registered FCM. These firms were referred to in the
Proposal as ``foreign brokers.'' The Commission also proposed to create
a single definition of ``foreign broker'' and ``commodity interest''
consistent with the Proposal.
---------------------------------------------------------------------------
\2\ 72 FR 15637 (April 2, 2007).
---------------------------------------------------------------------------
Part 3 of the Commission's regulations governs the registration of
intermediaries engaged in the offer and sale of, and providing advice
concerning, futures and commodity options traded on U.S. markets,
including both DCMs and DTEFs. In particular, Regulation 3.10 sets
forth the manner in which FCMs, IBs, CTAs, CPOs, and leverage
transaction merchants must apply for registration with the Commission.
Regulation 3.10(c) also provides an exemption from registration for
certain persons. Currently, the only exemption from registration as an
FCM is for any person trading solely for proprietary accounts, as
defined in Regulation 1.3(y).
As explained in the Proposal, the Commission sought to provide
clarity to its registration requirements under Part 3 by codifying the
longstanding Commission policy, known as the ``foreign broker
exemption,'' regarding the activities of certain foreign intermediaries
engaged in soliciting or accepting commodity interest transactions
solely on behalf of customers located outside the U.S. In particular,
the Commission proposed to exempt from registration as an FCM any
person that (1) limits its customers to customers located outside the
U.S., (2) confines its commodity interest activities to areas outside
the U.S, and (3) submits its trades for clearing on an omnibus basis
through a registered FCM.
II. Comments Regarding the Proposal
The Commission received two comment letters on the Proposal, one
from the National Futures Association (``NFA'') and one from the
Futures Industry Association (``FIA''). Both NFA and FIA supported the
Commission's initiative to codify the foreign broker exemption as a
means to provide greater legal certainty to futures industry
participants. However, FIA commented that the effect of the Proposal
would be to extend the Commission's regulatory requirements over the
activities of foreign brokers, rather than simply codify the
Commission's existing policy. In particular, FIA stated that, as
proposed, amended Regulation 3.10(c)(2)(ii) would subject foreign
brokers to the full panoply of Commission regulations applicable to
registered FCMs, such as requirements regarding fitness, customer funds
segregation, and regulatory capital.\3\ As such, FIA recommended that
the Commission revise the proposed amendment to Regulation 3.10(c) to
limit the extent to which the provisions of the Act and Commission
regulations apply in a manner consistent with the Commission's
longstanding policy towards foreign brokers. In support of its request,
FIA noted that the Commission has recognized that a foreign broker
holding a customer omnibus account with a registered FCM does not
implicate the same regulatory concerns as a foreign broker that has
more direct contact with U.S. markets, such as a registered FCM
clearing on a DCM or DTEF.\4\
---------------------------------------------------------------------------
\3\ Proposed Regulation 3.10(c)(2)(ii) provided that a foreign
broker acting in accordance with the codified foreign broker
exemption ``remains subject to all other provisions of the Act and
of the rules, regulations, and orders thereunder.'' (emphasis
added).
\4\ See, e.g., 72 FR at 15639 (April 2, 2007).
---------------------------------------------------------------------------
Additionally, both FIA and NFA recommended that the Commission
provide greater legal certainty to futures industry participants by
similarly codifying existing Commission policy with respect to
registration exemptions for other foreign intermediaries, i.e., IBs,
CTAs and CPOs, that are not engaged in commodity interest activities on
behalf of U.S. customers. In support of its request, FIA referred to
the Federal Register release issued by the Commission promulgating
final rules establishing the registration requirements and procedures
for introducing brokers and other futures industry professionals. In
that release, the Commission stated that:
given this agency's limited resources, it is appropriate at this
time to focus [the
[[Page 63977]]
Commission's] customer protection activities upon domestic firms and
upon firms soliciting or accepting orders from domestic users of the
futures markets and that the protection of foreign customers of
firms confining their activities to areas outside this country, its
territories, and possessions may best be for local authorities in
such areas.\5\
---------------------------------------------------------------------------
\5\ 48 FR 35248, 35261 (August 3, 1983).
Accordingly, FIA requested that the Commission amend its
regulations to provide an exemption from registration to any foreign
person engaged in the activity of an IB solely on behalf of customers
located outside the U.S.
Similarly, NFA referred to the no-action position taken by the
Commission's Office of General Counsel stating that: (1) A person who
operates a commodity pool outside of the territorial U.S. is not
required to register as a CPO when such a person confines the pool
activities to areas outside the territorial U.S., none of the
participants in the pool is a resident or citizen of the U.S., and none
of the funds or capital contributed to the pool is from U.S. sources;
and (2) a trading advisor located outside the territorial U.S. who
provides advice as to the advisability of trading futures contracts on
domestic and foreign exchanges is not required to register when such a
person confines its advisory services to areas outside of the
territorial U.S., and none of its clients is a citizen or resident of
the U.S.\6\ Accordingly, NFA requested that the Commission amend its
regulations to provide an exemption from registration for any foreign
person acting in the capacity of a CTA or CPO solely on behalf of
customers located outside the U.S.
---------------------------------------------------------------------------
\6\ CFTC Staff Letter 76-21, [1975-1977 Transfer Binder] Comm.
Fut. L. Rep. (CCH) ] 20,222 (August 15, 1976).
---------------------------------------------------------------------------
Consistent with this request, NFA further requested that the
Commission amend Regulation 3.12(h) to create an exemption from
registration as an associated person for any individual located in the
branch office of a Commission registrant that does not solicit or
accept orders from customers located in the U.S.
The Commission did not receive any comments regarding its proposal
to revise and reserve certain regulations to provide a single
definition for ``foreign broker'' and ``commodity interest'' that would
apply to all of its regulations.
III. Final Regulations
As set forth in the Proposal, the Commission believes it is
appropriate to amend its regulations to provide greater legal certainty
with respect to the commodity interest activities on behalf of non-U.S.
customers that are undertaken on U.S. markets by persons located
outside the U.S. It was the Commission's intent to codify its
longstanding policy, and not to extend the scope of its regulations
with respect to foreign brokers or other foreign intermediaries. As one
of the commenters noted, transactions solicited or accepted by foreign
brokers on behalf of non-U.S. customers for trading on U.S. markets
directly implicate the pricing and hedging functions of the domestic
markets, as would be the case for an entirely domestic transaction.\7\
The Commission believes that the presence of a registered FCM in the
clearing process obviates the need for a foreign broker to comply with
the full panoply of Commission regulations applicable to registered
FCMs. A registered FCM clearing a transaction on a DCM or DTEF, among
other requirements, must satisfy the fitness standards administered by
NFA and the minimum capital requirements set forth in Commission
Regulation 1.17, as well as comply with the requirements regarding the
segregation of customer funds set forth in section 4d of the Act.
---------------------------------------------------------------------------
\7\ See Tamari v. Bache & Co., 730 F.2d 1103, 1108 (7th Cir.
1984), cert. denied, 469 U.S. 871 (1984) (holding that a U.S.
federal district court had subject matter jurisdiction under the Act
over a cause of action arising from trading on U.S. exchanges, even
though the parties were located outside the U.S. and contacts
between them occurred in a foreign country).
---------------------------------------------------------------------------
In light of the comments received and its own reconsideration of
the issues involved, the Commission has determined to amend Regulation
3.10 with certain revisions to the Proposal. As amended, Regulation
3.10 will specify that a foreign broker is not required to register as
an FCM if it: (1) Limits its customers to customers located outside the
U.S., (2) confines its commodity interest activities to areas outside
the U.S, and (3) submits its trades for clearing on an omnibus basis
through a registered FCM. A foreign broker will remain subject to
existing provisions applicable to the activities of a foreign broker,
including Parts 15 to 21 of the Commission's regulations regarding
large trader reporting,\8\ and Regulation 1.58 regarding gross
collection of exchange-set margin. Conversely, a foreign broker will
not be subject to any provisions of the Act or Commission rules,
regulations and orders thereunder applicable solely to a registered FCM
or to any person required to be so registered. For example, a foreign
broker will not be required to comply with the minimum financial
requirements or requirements regarding the segregation of customer
funds, reporting or disclosure to customers, and related recordkeeping
pertaining to the foregoing requirements. However, the provisions of
the Act and Commission regulations applicable to ``any person'' will
apply to a foreign broker, such as those prohibiting fraud or
manipulation by a foreign broker trading for its own account.
---------------------------------------------------------------------------
\8\ See, e.g., Regulation 15.05, which states that, absent an
existing agency agreement between a foreign broker and another U.S.
person, an FCM is designated as the agent of a foreign broker for
purposes of accepting delivery and service issued to the foreign
broker by the Commission. The agency requirement similarly applies
to any IB who introduces such an account to an FCM.
---------------------------------------------------------------------------
The Commission also has determined to adopt new Regulation
3.10(c)(3) to provide an exemption from registration to other foreign
intermediaries acting solely on behalf of customers located outside the
U.S. In particular, the Commission is adopting new Regulation
3.10(c)(3)(i) to provide an exemption from registration for any foreign
person acting in the capacity of an IB, CTA or CPO solely with the
respect to customers located outside the U.S., provided that all
commodity interest transactions are submitted for clearing to a
registered FCM. A foreign person acting in the capacity of a CTA or CPO
will remain subject to the antifraud prohibition of section 4o of the
Act. Otherwise, consistent with the revised regulation applicable to
foreign brokers, new Regulation 3.10(c)(3)(ii) states that any foreign
person acting in accordance with this registration exemption is not
required to comply with those provisions of the Act and of the rules,
regulations and orders thereunder applicable solely to any person
registered in such capacity, or any person required to be so
registered.
Consistent with the amendments applicable to foreign
intermediaries, the Commission also has determined to amend Regulation
3.12 to provide an exemption from AP registration for any foreign
individual located in the foreign branch office of a Commission
registrant that engages in any activity as an AP, as defined in
Regulation 1.3(aa), solely on behalf of customers located outside the
U.S.\9\ A person exempt from AP registration pursuant to this provision
may not supervise other individuals engaged in the solicitation of
customers located in the U.S. for trading on a DCM or DTEF.
---------------------------------------------------------------------------
\9\ Supra, n. 5. Regulation 1.3(aa) defines ``associated
person'' to mean a natural person engaged in the solicitation or
acceptance of customer orders, or the supervision of any person or
persons so engaged.
---------------------------------------------------------------------------
Any person seeking to act in accordance with any of the foregoing
exemptions from registration should
[[Page 63978]]
note that the prohibition on contact with U.S. customers applies to
solicitation as well as acceptance of orders. If a person located
outside the U.S. were to solicit prospective customers located in the
U.S. as well as outside of the U.S., these exemptions would not be
available, even if the only customers resulting from the efforts were
located outside the U.S.\10\
---------------------------------------------------------------------------
\10\ A person wishing to act as an intermediary for security
futures transactions on a U.S. DCM or DTEF may notice register as a
securities broker-dealer (``BD'') if it is registered as an FCM or
IB and is a member of NFA. See Section 15(b)(11) of the Securities
Exchange Act (15 U.S.C. 78o(b)(11)) and 17 CFR 240.15b11-1. Foreign
brokers taking advantage of the exemption from registration under
the Act discussed herein would not qualify for notice registration
as BDs. Accordingly, if such foreign brokers want to solicit or
accept orders for security futures products traded on U.S. DCMs or
DTEFs, they must fully register as BDs in accordance with Section
15(b)(1) of the Securities Exchange Act and regulations thereunder,
unless other relief from such registration is available. Foreign
brokers may wish to consult the U.S. Securities and Exchange
Commission (``SEC'') and/or private counsel regarding how taking
advantage of this relief might affect their registration status with
the SEC.
---------------------------------------------------------------------------
The Commission's adoption of these rule amendments supersedes prior
staff positions on these subjects. Because the rule amendments contain
no substantive changes to prior staff letters, no party should be
disadvantaged. The new regulations will make these staff positions more
accessible and widely understood and obviate the need for individual
relief.
IV. Related Matters
A. Administrative Procedure Act
The Administrative Procedure Act generally requires that, before an
agency adopts a rule, the agency provide an opportunity for notice and
comment thereon. That opportunity is not required, however, when the
agency for good cause finds such procedure unnecessary. The Commission
has determined to amend Regulation 1.55(f) without opportunity for
notice or comment. Notice and comment is unnecessary in this instance
because the amendment to Regulation 1.55(f) solely corrects the
reference to the citation for ``institutional customer'' in Regulation
1.3.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (``RFA''), 5 U.S.C. 601-611,
requires that agencies, in proposing regulations, consider the impact
of those regulations on small businesses. The Commission has previously
established certain definitions of ``small entities'' to be used by the
Commission in evaluating the impact of its regulations on such entities
in accordance with the RFA.\11\ The Commission previously has
determined that registered FCMs are not small entities for the purpose
of the RFA because each FCM has an underlying fiduciary relationship
with its customers, regardless of the size of the FCM.\12\ The
Commission notes that certain foreign persons affected by the changes
to the Commission's regulations would be registered as FCMs if not for
the exemption provided therein and, as such, would maintain a fiduciary
relationship with customers similar to the relationship maintained by
each registered FCM. The Commission also previously has determined that
registered CPOs are not small entities for the purpose of the RFA.\13\
---------------------------------------------------------------------------
\11\ 47 FR 18618-18621 (April 30, 1982).
\12\ 47 FR 18619-18620.
\13\ 47 FR 18619-18620.
---------------------------------------------------------------------------
Other foreign persons affected by the changes would be registered
as IBs and CTAs if not for the exemption provided therein. The
Commission has stated that it would evaluate within the context of a
particular rule whether all or some affected IBs and CTAs would be
considered to be small entities and, if so, the economic impact on them
of any rule.\14\ Although certain foreign IBs and CTAs might be small
entities for purposes of the rule, the amended rules will reduce the
regulatory burden on all foreign IBs and CTAs.
---------------------------------------------------------------------------
\14\ 47 FR 18618-18620; see also 48 FR at 35276 (August 3,
1983).
---------------------------------------------------------------------------
Therefore, the Acting Chairman, on behalf of the Commission, hereby
certifies, pursuant to 5 U.S.C. 605(b), that these regulations will not
have a significant economic impact on a substantial number of small
entities. No comment was received regarding the impact of these
amendments on small businesses.
C. Paperwork Reduction Act
As required by the Paperwork Reduction Act of 1995,\15\ the
Commission submitted a copy of the proposed rule amendments to the
Office of Management and Budget for its review. The Commission did not
receive any public comments relative to its analysis of paperwork
burdens associated with this rulemaking.
---------------------------------------------------------------------------
\15\ Pub. L. 104-13 (May 13, 1995).
---------------------------------------------------------------------------
D. Costs and Benefits Analysis
Section 15(a) of the Act requires the Commission to consider the
costs and benefits of its actions before issuing new regulations under
the Act. By its terms, Section 15(a) does not require the Commission to
quantify the costs and benefits of new regulations or to determine
whether the benefits of the regulations outweigh their costs. Rather,
Section 15(a) requires the Commission to ``consider the cost and
benefits'' of the subject regulations.
The Commission published an analysis of costs and benefits when it
proposed the rule amendments that it is now adopting.\16\ It did not
receive any public comments pertaining to the analysis.
---------------------------------------------------------------------------
\16\ 72 FR at 15640 (April 2, 2007).
---------------------------------------------------------------------------
List of Subjects
17 CFR Part 1
Definitions, Registration, Minimum financial and reported
requirements, Prohibited transactions in commodity options, Customers'
money, securities and property, Miscellaneous.
17 CFR Part 3
Definitions, Foreign futures, Consumer protection, Foreign options,
Registration requirements.
17 CFR Part 4
Advertising, Commodity futures, Consumer protection, Recordkeeping
and reporting requirements.
17 CFR Part 15
Brokers, Reporting and recordkeeping requirements.
17 CFR Part 166
Authorization to trade, Customer protection.
0
In consideration of the foregoing, and pursuant to the authority
contained in the Commodity Exchange Act and, in particular, Sections
2(a)(1), 4(b), 4c and 8a thereof, 7 U.S.C. 2, 6(b), 6c and 12a (1982),
and pursuant to the authority contained in 5 U.S.C. 552 and 552b
(1982), the Commission hereby amends Chapter I of Title 17 of the Code
of Federal Regulations as follows:
PART 1--GENERAL REGULATIONS UNDER THE COMMODITY EXCHANGE ACT
0
1. The authority citation for part 1 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 5, 6, 6a, 6b, 6c, 6d, 6e, 6f, 6g, 6h,
6i, 6j, 6k, 6l, 6m, 6n, 6o, 6p, 7, 7a, 7b, 8, 9, 12, 12a, 12c, 13a,
13a-1, 16, 16a, 19, 21, 23, and 24, unless otherwise noted.
0
2. Section 1.3 is amended by adding paragraphs (xx) and (yy) to read as
follows:
Sec. 1.3 Definitions.
* * * * *
(xx) Foreign Broker. This term means any person located outside the
United States, its territories or possessions who
[[Page 63979]]
is engaged in soliciting or in accepting orders only from persons
located outside the United States, its territories or possessions for
the purchase or sale of any commodity interest transaction on or
subject to the rules of any designated contract market or derivatives
transaction execution facility and that, in or in connection with such
solicitation or acceptance of orders, accepts any money, securities or
property (or extends credit in lieu thereof) to margin, guarantee, or
secure any trades or contracts that result or may result therefrom.
(yy) Commodity Interest. This term means:
(1) Any contract for the purchase or sale of a commodity for future
delivery; and
(2) Any contract, agreement or transaction subject to Commission
regulation under section 4c or 19 of the Act.
0
3. Section 1.55 is amended by revising paragraph (f) to read as
follows:
Sec. 1.55 Distribution of ``Risk Disclosure Statement'' by futures
commission merchants and introducing brokers.
* * * * *
(f) A futures commission merchant or, in the case of an introduced
account, an introducing broker, may open a commodity futures account
for an ``institutional customer'' as defined in Sec. 1.3(g) without
furnishing such institutional customer the disclosure statements or
obtaining the acknowledgments required under paragraph (a) of this
section Sec. Sec. 1.33(g) and 1.65(a)(3), and Sec. Sec. 30.6(a),
33.7(a), 155.3(b)(2), 155.4(b)(2) and 190.10(c) of this chapter.
* * * * *
Sec. 1.56 [Amended]
0
4. Section 1.56 is amended by removing and reserving paragraph (a).
PART 3--REGISTRATION
0
5. The authority citation for part 3 continues to read as follows:
Authority: 5 U.S.C. 522, 522b; 7 U.S.C. 1a, 2, 4, 6, 6a, 6b, 6c,
6d, 6e, 6f, 6g, 6h, 6i, 6k, 6m, 6n, 6o, 6p, 8, 9, 9a, 12, 12a, 13b,
13c, 16a, 18, 19, 21, 23, unless otherwise noted.
Sec. 3.1 [Amended]
0
6. Section 3.1 is amended by removing and reserving paragraph (f).
0
7. Section 3.10 is amended by revising paragraph (c) to read as
follows:
Sec. 3.10 Registration of futures commission merchants, introducing
brokers, commodity trading advisors, commodity pool operators and
leverage transaction merchants.
* * * * *
(c) Exemption from registration for certain persons. (1) A person
trading solely for proprietary accounts, as defined in Sec. 1.3(y) of
this chapter, is not required to register as a futures commission
merchant: Provided, that such person remains subject to all other
provisions of the Act and of the rules, regulations and orders
thereunder.
(2)(i) A foreign broker, as defined in Sec. 1.3(xx) of this
chapter, is not required to register as a futures commission merchant
if it submits any commodity interest transactions executed on or
subject to the rules of designated contract market or derivatives
transaction execution facility for clearing on an omnibus basis through
a futures commission merchant registered in accordance with section 4d
of the Act.
(ii) A foreign broker acting in accordance with paragraph (c)(2)(i)
of this section is not required to comply with those provisions of the
Act and of the rules, regulations and orders thereunder applicable
solely to any registered futures commission merchant or any person
required to be so registered.
(3)(i) A person located outside the United States, its territories
or possessions engaged in the activity of: An introducing broker, as
defined in Sec. 1.3(mm) of this chapter; a commodity trading advisor,
as defined in Sec. 1.3(bb) of this chapter; or a commodity pool
operator, as defined in Sec. 1.3(nn) of this chapter, in connection
with any commodity interest transaction made on or subject to the rules
of any designated contract market or derivatives transaction execution
facility only on behalf of persons located outside the United States,
its territories or possessions, is not required to register in such
capacity: Provided, that any such commodity interest transaction
executed on or subject to the rules of designated contract market or
derivatives transaction execution facility is submitted for clearing
through a futures commission merchant registered in accordance with
section 4d of the Act.
(ii) A person acting in accordance with paragraph (c)(3)(i) of this
section remains subject to section 4o of the Act, but otherwise is not
required to comply with those provisions of the Act and of the rules,
regulations and orders thereunder applicable solely to any person
registered in such capacity, or any person required to be so
registered.
* * * * *
0
8. Section 3.12 is amended by removing ``or'' at the end of paragraph
(h)(1)(ii), removing the period and adding a semi-colon and ``or'' at
the end of paragraph (h)(1)(iii)(D), and adding paragraph (h)(1)(iv) to
read as follows:
Sec. 3.12 Regulation of associated persons of futures commission
merchants, introducing brokers, commodity trading advisors, commodity
pool operators and leverage transaction merchants.
* * * * *
(h) * * *
(1) * * *
(iv) Engaged in any activity as an associated person, as defined in
Sec. 1.3(aa) of this chapter, from a location outside the United
States, its territories or possessions, and limits such activities to
customers located outside the United States, its territories or
possessions.
* * * * *
PART 4--COMMODITY POOL OPERATORS AND COMMODITY TRADING ADVISORS
0
9. The authority citation for part 4 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 4, 6(c), 6b, 6c, 6l, 6m, 6n, 6o, 12a
and 23.
Sec. 4.10 [Amended]
0
10. Section 4.10 is amended by removing and reserving paragraph (a).
PART 15--REPORTS--GENERAL PROVISIONS
0
11. The authority citation for part 15 continues to read as follows:
Authority: 7 U.S.C. 2, 5, 6(c), 6a, 6c(a)-(d), 6f, 6g, 6i, 6k,
6m, 6n, 7, 9, 12a, 19 and 21, as amended by the Commodity Futures
Modernization Act of 2000, Appendix E of Pub. L. 106-554, 114 Stat.
2763 (2000).
Sec. 15.00 [Amended]
0
12. Section 15.00 is amended by removing and reserving paragraph (g).
PART 166--CUSTOMER PROTECTION RULES
0
13. The authority citation for part 166 continues to read as follows:
Authority: 7 U.S.C. 1a, 2, 6b, 6c, 6d, 6g, 6h, 6k, 6l, 6o, 7,
12a, 21, and 23, as amended by the Commodity Futures Modernization
Act of 2000, Appendix E of Pub. L. 106-554, 114 Stat. 2763 (2000).
Sec. 166.1 [Amended]
0
14. Section 166.1 is amended by removing and reserving paragraph (b).
Dated: November 7, 2007.
By the Commission.
David Stawick,
Secretary of the Commission.
[FR Doc. E7-22110 Filed 11-13-07; 8:45 am]
BILLING CODE 6351-01-P